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What You Need to Know About the New DC Universal Paid Leave Act

Below are 25 frequently asked questions concerning the new District of Columbia Universal Paid Leave Act (DCUPLA or Act):

  1. What is the DCUPLA? The Act establishes a paid leave system which is funded by employers with regard to individuals employed in the District of Columbia.
  2. When does the Act take effect? The Act requires that covered employers start paying into the Universal Paid Leave Implementation Fund (“Fund”) on July 1, 2019.
  3. How much do employers have to pay into the Fund? Covered employers are required to contribute an amount which equals 0.62 percent of the wages of each of their covered employees into the Fund.
  4. When do employees become eligible for these benefits? Covered employees are eligible to receive benefits starting July 1, 2020.
  5. Is the definition of covered employers under the Act broad? Yes. “Covered employers” are defined as (A) any individual, general contractor, subcontractor, association, corporation, partnership, business trust or any group of persons who directly or indirectly work through an agent or any other person including through the services of a staffing agency or temporary services or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and must pay unemployment insurance on behalf of its employees in Washington, D.C. or (B) a self-employed individual who has opted into the paid leave program. The DC Unemployment Compensation Act defines employers as those who “employ one or more individuals in any employment” in Washington, D.C. Accordingly, the Act has broad application to employers in general.
  6. Who is considered a “covered employee”? The Act defines a covered employee as any employee who spends more than 50% of her or his working time in D.C. for a covered employer. The Act applies to an individual whose employment for the covered employer is based in D.C. (even if the covered employer resides outside of D.C.) and who regularly spends a substantial amount of time in D.C., and not more than 50% of her or his work time for the covered employer in another jurisdiction.
  7. Who is an “eligible” individual under the Act? The Act defines an eligible individual as one who has been a “covered employee” during some or all of the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken or is a self-employed individual who earns self-employment income for work performed primarily in D.C. during some or all of the 52 weeks immediately preceding a qualifying event for which paid leave is being taken and has opted into the paid leave program.
  8. What type of benefits can an eligible individual receive? The Act allows for paid leave benefits, including intermittent leave benefits, in the following situations:
    1. Medical Paid Leave. An eligible employee is entitled to 2 weeks of paid medical leave following his/her diagnosis or occurrence of a serious health condition.
    2. Family Paid Leave. Eligible employees are entitled up to 6 weeks of paid family leave under the Act so the employee can provide care and companionship to a family member who has a diagnosis or occurrence of a serious health condition.
    3. Parental Paid Leave. Eligible employees are entitled up to 8 weeks of paid parental leave which can be taken within one year of the birth of a child, placement of a child with an eligible employee for adoption or foster care, or placement of child for whom the eligible individual legally assumes and discharges parental responsibility.

      Intermittent leave is defined under the Act as paid leave taken in increments of no less than one day.
  9. How is Family Member defined?
    1. A person to whom an eligible individual is related by domestic partnership or marriage.
    2. A biological, foster or adoptive parent; a parent-in-law; a stepparent; a legal guardian; or another person who stood in loco parentis to an eligible individual when the eligible individual was a child.
    3. A biological, adopted, or foster son or daughter; a stepson or stepdaughter; a legal ward; a son or daughter of a domestic partner; or a person for whom an eligible individual stands in loco parentis.
    4. A sibling of an eligible individual.
    5. A grandparent of an eligible individual.
  10. Are there requirements that eligible employees must satisfy before they can qualify for Family and Medical Leave? Yes. In order to qualify for medical paid leave or family leave under the Act, an employee must demonstrate that a serious health condition exists. A serious health condition includes a physical or mental illness, injury or impairment that requires in-patient care in a hospital, hospice or residential health care facility, or continuing treatment or supervision at home by a health care provider or other competent individual.
  11. How are “wages” defined for purposes of determining the employer’s contribution? The Act borrows the definition of “wages” from the DC Unemployment Compensation Act. It defines “wages” “as all remuneration for personal services, including commissions, bonuses, and the cash value of all remuneration in any medium other than cash.” The tax collection process under the Act mirrors the collection of unemployment taxes and is conducted on a quarterly basis.
  12. How do employers make their payments into the Fund? Employers are required to pay the contribution and make a report of the contribution for the last day of month following the close of each calendar quarter. Covered employers must make their first report on October 31, 2019.
  13. How much are covered employees eligible to receive in terms of benefit payments? It depends on how much the eligible employee earns. Eligible employees with a weekly wage at a rate that is equal to or less than 150 percent of the D.C. minimum wage multiplied by 40 will be entitled to payment of benefits at a rate that equals 90 percent of that eligible individual’s average weekly wage rate. Eligible employees who earn in excess of 150 percent of the minimum wage multiplied by 40 will be entitled to 90 percent of 150 percent of D.C.’s minimum wage multiplied by 40, plus 50 percent of the amount by which the eligible individual’s average weekly wage rates exceeds 150 percent of the minimum wage, with a present maximum weekly benefit not to exceed $1,000.
  14. Do employers have notice requirements under the Act? Yes. Covered employers must post a paid-leave-program notice provided by the D.C. Department of Employment Services (DOES) ateachworksite in a conspicuous place or places where notices are customarily posted. Employers are also required to send the notice to remote covered employees. Further, covered employers must provide the notice to employees at the following times:
    1. To an individual employee at the time of hiring.
    2. To an individual employee at the time the employer receives notice from the employee that leave for a qualifying event is needed.
    3. To all employees annually.
  15. Do employees have notice requirements under the Act? Yes. An eligible individual is required to provide written notice to her or his employer of the need to use paid leave under the Act. The written notice must include a reason for the absence, within the parameters of the Health Insurance Portability and Accountability Act of 1996 (HIPPA), and the expected duration of leave. If the leave is foreseeable, the written notice must be provided at least 10 days, or as early as possible, before the start of leave. If the leave is not foreseeable, an oral or written notification must be provided prior to the start of the work shift for which leave is being used. In case of an emergency, the eligible individual, or another individual on behalf of the eligible individual, must notify the eligible individual’s employer either orally or in writing within 48 hours of the emergency.
  16. For what periods of time may employees submit claims? An eligible employee may submit a claim for payment for any period during which she or he does not perform work because of a qualifying event. However, employees can only receive payment for one qualifying event in any 52 work week period.
  17. What does DOES do when it receives a claim from an employee? DOES will notify the employer within three business days of a claim being filed. Within 10 business days after an individual has filed a claim for benefits under the act, DOES will make an initial determination of an individual’s eligibility to receive benefits, the weekly amount payable, the week when payments will commence and the maximum duration of benefits. DOES will notify the individual and also advise of the right to appeal to the Office of Administrative Hearings if an eligible individual does not agree with the determination. Payment of benefits will begin within 10 business days of determining eligibility and subsequent payments will be made every other week thereafter.
  18. Does the Act impose other record keeping requirements on employers? Yes. Employers are required to develop and maintain certain records related to the Act for three years. These records include:
    1. The name and social security number (or tax identification number) of each covered employee.
    2. The wages paid for each pay period, including the cash value of other remuneration, gratuities, and tips and expenses incurred by each covered employee for which a deduction from wages is claimed.
    3. The beginning and ending dates of each pay period.
    4. Earnings of employees.
    5. Method of payment.
    6. The dates on which wages were paid.
    7. Copies of employee notices of leave furnished to the employer.
    8. Dates of parental, medical and family leave taken by employees.
    9. Copies of all written notices given to employees as required under the Act.
    10. Documents describing employee benefits, including short-and long-term disability policies, sick leave, vacation leave, and other employer paid and unpaid leave policies and practices.
    11. Records of disputes between the employer and the employee regarding the Act.
  19. What is the relationship between the Act and the Federal Family Medical Leave Act (Federal FMLA) and the District of Columbia Family Medical Leave Act (DCFMLA)? Leave taken under the Act will run concurrently with any potential leave taken under the Federal FMLA or the DCFMLA. The Act does not provide any job protections greater than those already provided in the existing DCFMLA.
  20. Can employers sidestep the requirements of the Act by providing other benefits? No. Although employers can provide other benefits than those required by the Act, doing so does not eliminate the employer’s requirement to comply with the requirements of the Act.
  21. Are there situations where otherwise eligible individuals are not eligible to receive benefits under the Act? Yes. If an eligible individual is receiving long-term disability payments or unemploy-ment insurance, he or she is not eligible to receive benefits under the Act.
  22. Can an employer and employee agree that the employer will waive her rights under the Act? No. These types of agreements are prohibited.
  23. How is the Act enforced? The Act grants employees the right to sue for violations within one year after the occurrence or the discovery of a violation of the Act. The Attorney General in the District of the Mayor may bring a civil action against an employer.
  24. What are the remedies for violations of the Act? The remedies under the Act are the same as those that are available under DC FMLA, which include wages, benefits or other compensation denied or lost, plus interest; liquidated damages and reasonable attorneys’ fees and costs.
  25. Does the Act prohibit retaliation? Yes. The Act prohibits an employer from retaliating against any person because the person (i) opposes a practice made unlawful under the Act; (ii) files or attempts to file a charge based upon a violation of the Act; (iii) institutes or attempts to institute a proceeding; (iv) requests or applies for paid leave benefits; or (v) gives any information or testimony in connection with an inquiry or proceeding related to the Act.

Marc Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information, contact Marc at 301-657-0184 or mrengel@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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