December 27, 2016
The District of Columbia (“D.C.”) is on the precipice of change. In another attempt to protect workers without sufficiently taking into account impact on local businesses, lawmakers in D.C. are considering the Universal Paid Leave Act, a bill that would create a tax on employers to support additional paid leave for employees. D.C. already requires some mandatory paid leave for all D.C. employers under the Sick and Safe Leave Act of 2008, as amended.
Employers have historically been required to provide unpaid leave under a D.C. version of the Family and Medical Leave Act in effect since 1990 and a separate Parental Leave Act from 1994 aimed at allowing employees to attend school-related activities of a child. The pending Universal Paid Leave Act would substantially expand the amount of paid leave required to be provided by employers and dramatically change the payment framework. Here is what business owners and human resources leadership need to know.
I. Requirements on Employers to Provide Unpaid Leave
a. D.C. Family and Medical Leave Act
Both the federal government, through the Family and Medical Leave Act (“FMLA”), 29 U.S.C. 2601 et seq, and D.C., through the D.C. Family and Medical Leave Act (“DCFMLA”), D.C. Code § 32-501 et seq, require employers to provide unpaid leave to employees for sick time
or to care for certain sick family members.1 D.C. actually enacted the DCFMLA before the federal government enacted its version, with job security as the focus. Letter from Mayor Barry to Chairman of Council of District of Columbia Regarding Draft Legislation (Jan. 9, 1989).
With limited exception, employees who take protected leave “shall not lose any employment benefit or seniority accrued before the date on which the family or medical leave commenced.” D.C. Code § 32-505. Employers are, however, permitted to deny an employee the position upon return if the employee is among the 5 highest paid employees in a company with fewer than 50 employees or is among the highest paid 10% of employees in a company with 50 or more employees, provided, the employer can show that substantial economic injury not directly related to the leave the employee took would ensue if the employee’s position was restored. D.C. Code § 32-505. When an employer determines such course of action is necessary, the employer must notify the employee of the intent to deny restoration and basis for doing so. D.C. Code § 32-505. The DCFMLA remains in effect even though paid leave is required for certain overlapping situations, as discussed further in Part II.
The DCFMLA applies to any employer who employs 20 or more persons in D.C. D.C. Code § 32-516. But see Hopkins v. Grant Thornton, LLP, 529 F. App'x 1, 3 (D.C. Cir. 2013) (denying DCFMLA claim to individual who primarily worked out of Alexandria, Virginia office
and had a brief project in D.C. because he was not an employee under the statute). The law creates a right to 16 workweeks of family leave, four more than under federal law, during a 24 month period, due to birth of a child, adoption or foster care placement, placement of a child over whom the employee permanently assumes and discharges parental responsibility or the care of a family member who has a serious health condition. D.C. Code § 32-502. The broad definition of “family member” includes traditionally non-legally binding relationships such as that of a child who lives with an employee and is cared for by that employee or a significant other with whom the employee cohabitates. D.C. Code § 32-501. Similar to the federal definition, the term “serious health condition” means “a physical or mental illness, injury, or impairment that involves: (A) Inpatient care in a hospital, hospice, or residential health care facility; or (B) Continuing treatment or supervision at home by a health care provider or other competent individual.” D.C. Code § 32-501. Both the local and federal acts consider the nature of care that is required to treat the illness in defining “serious health condition.” Chang v. Inst.
for Pub.-Private Partnerships, Inc., 846 A.2d 318, 326–27 (D.C. 2004).
An employee is eligible for leave under the DCFMLA after 1 year of employment with an employer without break in service (except for regular holiday, sick or personal leave) and has worked at least 1000 hours during the 12 months immediately preceding the leave request. D.C. Code § 32-501. As under the Sick and Safe Leave Act discussed in Part II below, an employer has the right to require that a request for leave under the Act is supported by a certification issued by the health care provider of the employee or relevant family member. D.C. Code § 32-504.
This certification should include the date when the health condition began, the probable duration of the condition, the medical facts that would entitle the employee to take leave and an estimate of the amount of time either that the employee would be unable to perform the functions of the employee’s job if medical leave pertains to the employee or that the employee is needed to care for the family member. D.C. Code § 32-504. An employer can also request that the certification include an explanation of the extent to which the employee is unable to perform the functions of the employee’s position. D.C. Code § 32-504. An employer can request a second opinion if reason to doubt the validity of the certification; the employee can request a third opinion if the prior two opinions differ. D.C. Code § 32-504. Lastly, an employer can require an employee to obtain subsequent re-certifications on a reasonable basis. D.C. Code § 32-504.
Under the DCFMLA, an employer is obligated to post notice of the law and to maintain employee records. D.C. Code § 32-511; D.C. Code § 32-508. The statute prohibits discharge or discrimination for any activity permitted under the statute. D.C. Code § 32-507. The statute
delegates to the Mayor the authority to create an administrative enforcement scheme for non compliance; if the Mayor’s administrative procedure takes over 150 days to complete, a civil action can be filed against the employer. D.C. Code § 32-509; D.C. Mun. Regs. tit 4, §§ 1622, 1623.
b. The Parental Leave Act of 1994
Four years after the DCFMLA, D.C. passed the Parental Leave Act, which applies to all private employers who use services of an individual for pay in D.C. and to the D.C. government. D.C. Code § 32-1201 et seq. See also Siddique v. Macy's, 923 F. Supp. 2d 97, 105 (D.D.C.
2013). The Act created a right for employees to 24-hours of leave during any 12-month period to attend or participate in a “school-related event” for a child. D.C. Code § 32-1201. A “school related event” is “an activity sponsored by either a school or an associated organization such as a parent-teacher association.” D.C. Code § 32-1201. Examples include concerts, plays, rehearsals, sporting events, and parent-teacher conferences. D.C. Code § 32-1201.
The definition of parent is broad, including a person who acts as a guardian of a child regardless of whether he or she has been appointed legally as such and the spouse or domestic partner of an aunt, uncle, or grandparent of the child. D.C. Code § 32-1201. The employee must notify the employer of an intention to attend a school-related event at least 10 calendar days in advance unless the need to attend the event cannot be reasonably foreseen. D.C. Code § 32-1202.
Like the DCFMLA, the focus of Act is to ensure job security: “An employee who takes leave pursuant to § 32-1202 shall not lose any employment benefit or seniority accrued before or during the date of such leave.” D.C. Code 32-1203. Employers are not required to pay an employee for this type of leave “unless the employee elects to use paid family, vacation, personal, compensatory, or leave bank leave that has been provided by the employer.” D.C. Code 32-1202.
This means an employee can take unpaid leave for a school-related event in addition to unpaid time under the DCFMLA and/or paid time under Sick and Safe Leave Act. However, employers need not provide leave under the Parental Leave Act if granting such leave would “disrupt the employer's business and make the achievement of production or service delivery unusually difficult.” D.C. Code § 32-1202.
The Parental Leave Act was amended in the year 2000 to permit a day of unpaid leave for D.C. Emancipation Day, April 16. D.C. Law 13-237. D.C. public schools are closed on Emancipation Day. An employee who desires to use unpaid leave for this day must provide
notice to the employer at least 10 calendar days in advance. D.C. Code § 32-1202.
As with the DCFMLA, employers must post notice with information about the Act and how to file a complaint. § 32-1206. The Act tasks the Mayor with creating an administrative procedure that takes no longer than 150 days to complete. D.C. Code § 32-1204. If the Mayor
fails to make a reasonable effort to meet that deadline, the employee can bring a civil action. D.C. Code §§ 32-1204, 1205.