HARMON CURRAN NONPROFIT LAW BLOG

As 2020 dawns, Washington, DC employers should continue preparing for the implementation of the District’s new Paid Family Leave program. Employers began paying taxes in 2019 to fund the program, and eligible employees will be able to receive paid benefits for qualifying leave beginning July 1, 2020.

The new program will allow eligible employees in Washington, DC to receive paid benefits to welcome a new child into the home, to care for an ill family member, or to manage their own medical condition. Similar to unemployment insurance, the program is funded by an employer tax, and employees will receive an income replacement benefit directly from the city government based on their regular salary, up to a maximum weekly benefit amount.

Employers have several compliance requirements to keep in mind under the new law:

• Register with the DC Department of Employment Services (DOES)
• Pay the tax
• Notify employees about their rights under the act
• Maintain related records for at least three years after the qualifying leave.

As explained in prior posts, employers should already be registered and paying the applicable tax to the DC government.  Employers should take steps now to make sure that they provide the required notice to their employees about their benefits under the program by February 1, 2020 and annually thereafter. Employers are required to provide the notice by 1) hanging a poster in the same area as other workplace posters, and 2) sending a mail or electronic notice to all employees containing information regarding the new benefit. Going forward, employers will also need to notify new employees at the time of hire and individual employees the employer knows may need to use the benefit. The Department of Unemployment Services has provided a sample notice that employers may use to meet both of the notice requirements, or employers may develop their own notice as long as it contains information about who is covered by the benefit, what qualifying events are covered, how workers can apply for benefits, and how to contact the Office of Paid Family Leave.

Some regulations regarding the implementation of the benefit program are still in proposed form, and may change somewhat before the program is finalized.

Benefits

Within a 52-calendar week period, employees are eligible to receive paid benefits for:

• Parental Leave: Up to eight weeks taken to bond with a child within 52 weeks following the birth or placement of a child with the employee. Qualifying events can include birth, as well as adoption, fostering, or otherwise assuming care for a child.
• Family Leave: Up to six weeks when the employee is providing care to a family member with a serious health condition.
• Medical Leave: Up to two weeks when the employee is unable to work due to the employee’s serious health condition.

Employees are eligible for a total of up to eight weeks of paid benefits per rolling year, regardless of the number of qualifying events. The benefits can be received all at one time or intermittently – for example, an employee with a new child could choose to receive benefits for up to one day off per week for 40 weeks, rather than eight weeks all at once. Employees cannot receive benefits for a half-day of leave; on any given day they are either on leave or working. Employees also cannot receive income by performing work during any day that they claim the leave benefit.

The value of the benefit is calculated using a formula based on the employee’s regular earnings. The maximum benefit is $1,000 per week (adjusted annually for inflation), and the benefit is progressive – meaning that lower wage earners will have a higher percentage of their income replaced. Leave benefits may be subject to federal, state, and local taxes, for which the applicant is responsible.

Eligibility

Employees will be able to submit claims for coverage beginning July 1, 2020. Employees will be eligible for coverage if:

• they are employed by an employer with employees working in DC (“covered employer”) at the time of application,
• have earned income as a covered employee of a covered employer during at least one of the last five calendar quarters prior to the application, and
• the employee’s wages were reportable to DOES by the covered employer.

Employees will be eligible for paid benefits even if the qualifying event took place prior to July 1, 2020, as long as they are taking qualifying leave after July 1, 2020. For example, an employee who adopted a child in January 2020 may submit a claim for paid benefits for taking parental leave beginning July 1, because the leave is still within the 52-week window allowable for welcoming a new child into the home. An employee who was diagnosed with a medical condition requiring a month off work on June 15, 2020 would be able to apply for paid benefits for medical leave taken beginning on July 1, 2020. If the employee became ill on June 15 but was no longer ill on July 1, 2020, they would not be eligible for paid benefits for the leave taken.

Process to File Claims

Employees can only file a claim after a qualifying event occurs. The employee submits a claim directly to the Department of Employment Services and also is required to notify their employer of the claim. If the leave is foreseeable, the employee should notify the employer at least ten days before the leave is to begin, and if it is unforeseeable, the employee should notify the employer before the start of the work shift if possible, and if not, within 48 hours after the emergency occurs. Notice should include the type of leave, expected duration, expected start and end date, and whether it is continuous or intermittent.

Within three days after the claim is submitted, DOES will contact the covered employer to request details regarding the claimant’s employment status, days worked, and other relevant information to investigate the claim. The covered employer has four business days to respond to the DOES inquiry. There is a waiting period of seven days before the employee is entitled to receive benefits after a qualifying event, but that waiting period will not count toward the number of weeks the employee is eligible to take.

Coordination of Benefits

If an employee is eligible for leave under the federal Family and Medical Leave Act (FMLA) or the DC Family and Medical Leave Act (DC FMLA), leave taken while receiving benefits through DC’s Paid Family Leave program runs concurrently with protected leave under FMLA or DC FMLA.  However, the Paid Family Leave program does not extend job protection to employees who are not eligible for FMLA or DC FMLA leave and take leave for which benefits are received under the program.

An employer’s policies will determine an individual’s right to receive employer-provided paid leave (e.g., sick, vacation, parental, short-term disability, etc.) in addition to receiving paid leave benefits under this employer-funded program. The payment from the program is made directly to the employee and the amount of the benefit is not disclosed to the employer unless the employee authorizes it to be disclosed. However, the employer can require the employee to disclose the benefit amount before authorizing the payment of supplementary employer-provided benefits. For example, if the employer offers four weeks of fully paid parental leave, the employer may require that any payments received through the DC Paid Family Leave program be deducted from such employer-provided payments and also require the employee to disclose the amount of the benefit they will receive from the DC program so that the employer can supplement the benefit up to the employee’s regular pay, but not provide additional benefits.

District of Columbia employers are not required to offer any paid parental benefits beyond their contributions required under the Paid Leave Act. Under the D.C. Sick and Safe Leave Act, employers are required to provide a very limited amount of paid leave that can be used for personal medical leave or family caregiving (employers with less than 24 employees receive not less than one hour of paid leave for every 87 hours worked; employers with at least 25 but not more than 99 employees receive one hour of paid leave for every 43 hours worked; employers with 100 or more employees receive one hour of paid leave for every 37 hours worked).  Given their contributions to the DC Paid Family Leave program, those employers who currently provide paid parental leave and/or paid medical, or family leave beyond that required under the DC Sick and Safe Leave Act may decide to cease providing those additional paid benefits , or to provide them only as a supplement to the benefits available under the DC Paid Leave Act. Other employers may be comfortable contributing to the DC Paid Family Leave program and continuing with their existing paid parental, medical, or family leave benefits.  Employers will also want to evaluate how their short-term disability policies interact with the benefits available to employees for qualifying medical leave.

Employees who are currently receiving unemployment benefits or long-term disability payments are not eligible for DC Paid Leave Act benefits.

Harmon Curran attorneys are available to assist your organization as you navigate this new law and determine how to coordinate benefits between the new program and your current policies.  Please contact us with any questions.