In May 2010 the District of Columbia Office of Human Rights issued proposed new regulations for the District’s Family and Medical Leave Act (DC FMLA).

After an extended public comment period, the OHR implemented revised regulations for the DC FMLA effective November 19, 2010. The new regulations have not received much attention, perhaps because the most controversial provisions for the proposed regulations were eliminated in the final version (see below).

The basic provisions of the DC FMLA have not changed, which still requires employers to allow employees to take up to 16 weeks of personal medical leave and 16 weeks of family leave in a 24-month period. The new regulations track the text of the Act closely, but some new notice and recordkeeping requirements and “interpretive” provisions have been added. Prior regulations were much shorter and less detailed.

Other than eligibility and entitlement rules, many aspects of the DC Act and the revised regulations are substantially similar to the federal FMLA regulations.

Key provisions are noted below, along with some notations as to what provisions are new material not previously included in the Act itself or the prior regulations. However, the new regulations are lengthy and should be reviewed in their entirety. Click here to see a copy.

DC FMLA Regulations – Key Provisions:

1. Covers employers with 20 or more employees located in the District of Columbia. §§1601.2, 1601.5.

2. Employee eligibility rules (established as of the time the requested leave is scheduled to commence):

a. Employee works within the District at least 50% of his/her work time (or otherwise satisfy the parameters of being employed “in” the District). §1603.5. [new]

b. Has worked for the employer for at least one year without a break in service other than normal holidays, vacations, etc. The one year of continuous service does not need to be immediately preceding the leave request, unless the break in service between the leave request and the last date of service is greater than 7 years. §§1603.1, 1601.2. [Explanation of “continuous service” and 7-year break new.]

c. Has worked for at least 1000 hours in the 12 months immediately preceding the leave. For this purpose, paid time for holidays, vacation, sick leave, etc. are counted in the 1000 hours. §1603.1.

3. Leaves available:

a. 16 weeks per 24-month period for the employee’s serious health condition (SHC) §1605; and

b. 16 weeks per 24-month period for birth of a child, adoption, or other permanent placement of a child with the employee, or to care for a family member who has a SHC. §1606.

i. “Family member” includes: §1699

(a) A person related by blood, legal custody, or marriage;
(b) A foster child; [new]
(c) A child who lives with an eligible employee and for whom the eligible employee permanently assumes and discharges parental responsibility; or
(d) A person with whom the eligible employee shares or has shared, within the last year, a mutual residence and with whom the eligible employee maintains a committed relationship.

4. Leave may be taken in a continuous block or on intermittent or reduced schedule basis. §§1605.1, 1606.3.

a. Upon agreement between the employer and the employee, 16 weeks of family leave for bonding may be taken on a reduced leave schedule over a period not to exceed 24 consecutive weeks. §1606.4 [previously this reduced leave schedule was available for any family leave; now limited to bonding]

5. Employee has choice to use accrued paid time off concurrently with DC FMLA. §§1605.5, 1606.7.

6. Two family members working for the same employer may be limited to a combined total of 16 weeks of family leave during a 24-month period for the same underlying reason, and may not take more than 4 weeks off concurrently for the same underlying reason. §1606.9.

7. The regulations recognize job protection, continued health benefits, and key employee status similar to the FMLA. §1609.

8. Employer notice requirements:

a. General notice of DC FMLA rights via posting and inclusion in the employer’s employee handbook. § 1613.2.

b. Written notice of eligibility to the employee within 5 days of an employee’s leave request or notice that the employee needs time off for a qualifying reason. §1613.3, 1613.4. [new] The notice must include:

i. Whether the employee is eligible for DC FMLA leave;

ii. If the employee is not eligible, the reasons for the employee’s ineligibility;

iii. The specific expectations and obligations of the employee under the DC FMLA and, if applicable, federal FMLA;

iv. The employee’s rights under the DC FMLA and, if applicable, federal FMLA;

v. The number of hours of leave which are available to the employee under the DC FMLA and, if applicable, federal FMLA; and

vi. If applicable, a notice that the employee must submit a medical certification.

c. Written notice to the employee designating the leave as DC FMLA or federal FMLA qualifying leave. §1613.6 [new]

9. Employer recordkeeping requirements: Employers must maintain records which document extensive leave information on an annual basis, including: §1617.6. [all new]

a. The total number of employees who have taken leave pursuant to the DC FMLA;

b. The annual additional cost to the employer for the expenses incurred to replace an employee during the time the employee is on leave granted pursuant to the DC FMLA;

c. The annual additional cost incurred to pay for the employee’s health insurance during the time the employee is on leave granted pursuant to the DC FMLA;

d. The length of leave taken by an employee pursuant to the DC FMLA;

e. The reason(s) an employee took leave pursuant to the DC FMLA;

f. The salary, hourly wage, or grade level of the employee who has taken leave pursuant to the DC FMLA;

g. The employee’s request and supporting documents for leave requested pursuant to the DC FMLA; and

h. The employer’s disposition of the employee’s request for leave pursuant to the DC FMLA.

Some Good News

Some of the problematic provisions included in an earlier version of the proposed DC FMLA regulations have been omitted, presumably after objections during the public comment period.

Initially, the regulations proposed to extend coverage to employees who worked for a District employer in or within 75 miles of the District. This would have created coverage for DC employers with satellite offices in surrounding states, even if the offices had only a few (or even one) employees. This geographic extension of coverage is omitted from the final regulations.

In addition, the initial draft regulations would have required employers to provide a notice to an employee who has used 14 weeks of family or medical leave within a 24-month period, detailing the remaining amount of leave time, the anticipated exhaustion date, and other information. Failure to provide the notice timely and with the correct information would have constituted interference with DC FMLA rights. This additional and onerous notice provision did not make it into the final regulations.

Click here to see District of Columbia Family and Medical Leave Act – Final Regulations

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