Washington D.C. FMLA and U.S. FMLA Guide for HR

District of Columbia’s FMLA Overview

Washington D.C. has provided an unpaid family medical leave for D.C. employees for over 5 years.

But, 

Many employers and managers still have questions about how to implement the DCFMLA leave independently or in conjunction with the U.S.FMLA.

At first glance, it may appear that both FMLA leaves can be taken simultaneously, but there are actually several situations in which only one leave would be taken, which means that employees would still have additional leave available to them.

Be aware:

If employers mistakenly deny the extra leave, it could result in costly fines. The purpose of this article is to outline the Washington D.C. Family Medical Leave Act (DCFMLA) and outline instances when FMLA leave can be taken simultaneously or must be taken independently.

D.C. Family Medical Leave Act Benefits

The DCFMLA provides protected leave of 16 weeks every 24 months to employees. The leave is unpaid, although Washington D.C. just passed a Universal Paid Leave Amendment that is set to provide paid leave for D.C. employees starting in 2020.

Under DCFMLA, employees can take 16 weeks of Family Leave and another 16 weeks of Medical Leave. That means that a pregnant employee who becomes unable to work can take 16 weeks of Medical Leave during her pregnancy and then would be able to take another 16 weeks of Family Leave to bond with her new child.

If both spouses work for the same company, then like the U.S. FMLA, the leave can be split between both employees for a total of 16 weeks. In addition, spouses taking simultaneous leave can be restricted to 4 weeks of simultaneous leave.

Employees are required to provide their employers with a 30-day notice when the leave is foreseeable. If leave is unforeseeable, then the employee must provide notice as quickly as possible.

Group health insurance benefits must be maintained during the leave.

Qualifying for DCFMLA

Under DCFMLA businesses with 20 or more employees are considered covered employers. Employees who work at these businesses can qualify for DCFMLA. In order for an employee to qualify the employee has to have worked for the employer for the full year previous to the leave.

And, 

The employee must have worked at least 1,000 hours during that time. That’s the equivalent of just under 20 hours a week.

The qualifications for DCFMLA are different from the Federal FMLA which also requires a total of 12 months of employment with the employer, but that time could have been anytime in the last 7 years. In addition, employees must work at least 1,250 hours in the previous year. Employers must have 50 or more employees within a 75-mile radius.

As a result, there will be many employees who do not qualify for the U.S. FMLA but do qualify for DCFMLA. Small business employees and employees who have worked less than 1,250 hours, but at least 1,000 hours in the last year.

But, 

Some employees may qualify for FMLA, but not for the DCFMLA because of the 12 months of consecutive employment that DCFMLA requires. In these situations, the employee could take the leave they qualify for, but may within weeks or months then qualify for the other leave requirements. In that case, employees would then be eligible for time again.

For example, an employee who has worked for an employer for a total of 12 months over the last several years and who reinstated employment 8 months previous to their leave, working over 1,250 hours would qualify for the Federal FMLA.

Did you know?

Because the employee hasn’t worked a continuous 12 months with the employer prior to the leave, they would not qualify for DCFMLA. The employee takes 12 weeks of FMLA leave to care for a family member. After returning to work and working another 4 months, the employee would then be eligible for DCFMLA of 16 weeks. That employee then takes another 16 weeks of protected leave under DCFMLA law.

A similar situation could occur for an employee who is eligible for DCFMLA but hasn’t yet reached the requirements for the U.S. FMLA.

Allowable Reasons for Taking DCFMLA

The D.C. Family Medical Leave provides both medical and family leave for employees. Employees can take family leave to bond with a new child in their home. This can occur within 12 months of the birth of a child, adoption or foster placement of a child into the employee’s home.

In addition, DCFMLA provides bonding leave when a child is placed in the employee’s home and the employee permanently assumes and discharges parental responsibility for the child. In addition, family leave can be taken when a family member has a serious health condition or illness. Medical leave can be taken when the employee has a serious health condition or illness.

Serious health condition follows roughly the same definition as the federal guidelines. The individual with a serious health condition must stay have at least 1 day of inpatient care in a hospital, hospice, or residential health care facility or must be under the care of a healthcare provider.

One exception to this rule is if an employee is late to work due to an asthma attack or morning sickness but did not see a doctor. That employee is still eligible to take medical leave due to those reasons.

• Birth of a child
• Placement of a child with employee adoption or foster care
• Placement of a child for whom the employee permanently assumes and discharges the parental responsibility
• Care of family member serious health condition
• Medical leave for the employee’s own serious health condition

Family Relationships Allowed for Family Leave under DCFMLA

Washington D.C.’s FMLA provides family leave for many of the same relationships as the U.S. FMLA but does broaden it. The family is defined as any individual related by blood, legal custody, or marriage. In addition any person that the employee shares a residence with and has a committed relationship with is also considered family.

Although the original DCFMLA did not specifically include foster children under the definition of family, the new Universal Paid Leave Amendment added foster children to the DCFMLA.

• Person employee related by blood marriage or legal custody
• A child who lives with the employee who employees permanently assume and discharge the parental responsibility
• Person employee shares a mutual residence and a committed relationship
• Foster child

If the employee takes DCFMLA for any family relationship not covered under the Federal FMLA, then the employee would still have FMLA time available to them. This could be the case if the employee takes time to care for a domestic partner. Domestic partners are not covered under FMLA but are covered under DCFMLA.

Notice, Documentation Requirements, and Fines under DCFMLA

Employers are required to post a copy of employees rights under DCFMLA in their employee handbook. If the employer does not have an employee handbook, then they are required to hand out the notice to new hires. When employees apply for DCFMLA, the employer has 5 days to issue an eligibility letter to the employee.

In addition, businesses are required to maintain annual records of DCFMLA leave taken, a cost to the business and other information. Employers must track the total number of employees who take DCFMLA leave, the cost to the employer to replace the employee during the leave period, and the cost of maintaining the employee’s group health insurance coverage.

Plus, 

Employers must track the length of time employees took leave, the reasons for leave, the salary, hourly wage, or grade level of the employee. In addition, employers must keep the documentation of the employee’s request for leave, and all supporting documentation including the employer’s disposition of employee leave. This information must be kept separate from other HR records and must be locked up.

DCFMLA allows for employees to seek redress under both DCFMLA and the U.S. FMLA laws. This means that non-compliance could add up to big fines and recompense for employers who accidentally violate DCFMLA.

Let SwipeClock Help

Regulator fines and penalties can often become a hardship for employers who, even accidentally, violate leave laws. In addition, many businesses in the Washington D.C. area have to navigate between D.C. FMLA leave laws, D.C. sick leave, minimum wage, in addition to the Virginia and Maryland leave laws. This makes it even trickier to maintain compliance.

Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act, Affordable Care Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

Resources

DCFMLA and U.S. FMLA comparison

DCFMLA Ordinance

Written by Annemaria Duran Last Updated June 27, 2017