Benefits will be available to employees under the District of Columbia’s paid family and medical leave program, known as D.C. Paid Family Leave (DCPFL), starting July 1, 2020. As discussed in our prior posts here and here, DCPFL provides partial wage replacement benefits to eligible employees who need to take leave for certain medical or family reasons. The program is funded by employer payroll taxes, which D.C. employers began paying in July 2019. DCPFL is administered by the Department of Employment Services (DOES), which will make eligibility determinations and pay benefits directly to employees.
The following Questions & Answers are intended to assist employers in understanding the DCPFL program, and in particular, how the D.C. benefits will interact with employers’ own paid leave benefits, and how employers can coordinate their benefits with DCPFL.
- Which employers and employees are covered by DCPFL? Employers with 1 or more employees in the District are generally covered, and any employee for whom the employer pays unemployment taxes in D.C. is presumptively covered. Unlike the Family and Medical Leave Act (FMLA) or DCFMLA, DCPFL does not limit eligibility to employees who have worked for their employer for a minimum amount of time.
- For what reasons can employees receive DCPFL benefits? Employees can receive up to 8 weeks of partial wage replacement benefits during a 52-week calendar period subject to a monetary cap (discussed below). The 8 weeks of DCPFL can include any combination of the following: up to 8 weeks for parental leave for a new child, including child bonding; up to 6 weeks to care for a family member with a serious health condition; and up to 2 weeks for the employee due to the employee’s own serious health condition.
- How much will employees receive in benefits? DCPFL benefits are determined using a sliding scale formula. Employees can receive up to 90 percent of earnings, but benefits are capped at US$1,000 per week until October 2021 (the cap will then be adjusted annually for inflation). Benefits are based on the average wages that the employee earned from any covered D.C. employers during the highest paid 4 of the last 5 quarters.
- Does DCPFL give job protection? Not expressly; however, an employee may have job protection if the leave is covered by FMLA and/or, DCFMLA. In other words, DCPFL does not create an additional entitlement to job protection during leave, but rather provides employees with partial wage replacement for leaves they are already eligible to take by law or under the employer’s own policies. That said, the DCPFL law prohibits retaliation, so employers with a practice or policy of granting leaves beyond FMLA and DCFMLA should exercise caution in denying additional leave time to employees who want to use DCPFL benefits.
- What are employers’ obligations with respect to DCPFL? In addition to paying the quarterly DCPFL taxes, employers have two responsibilities: providing notice to employees of their rights to DCPFL benefits, and keeping records related to DCPFL. Employers should already be displaying this notice in their workplaces (it should also be sent electronically to employees working remotely). The same notice must also be given to (1) each new employee within 30 days of hire; (2) all employees annually; and (3) individual employees when the employer receives direct notice from the employee that the employee needs leave for a qualifying event. DCPFL records, including (among other requirements) the dates of medical and family leaves taken and records of any disputes between employer and employee regarding DCPFL, must be retained for at least 3 years.
The DCPFL claims process
- How do employees apply for DCPFL? Employees will apply through a DOES online portal (or other formats DOES may develop), using forms that differ from FMLA/DCFMLA forms. Employees will not be permitted to submit applications in advance, even when the leave event is planned (such as childbirth or a scheduled surgery). Employers may not submit applications on an employee’s behalf.
- How long will it take DOES to approve claims and start paying benefits? According to the DCPFL final benefits regulations, DOES will ordinarily make claims determinations within 10 business days after receiving an application. Additional time will be required if the application is incomplete, or if the claim is denied and the employee appeals the denial. DOES will begin making benefits payments within 10 business days after approving a claim. Payments will be made directly to the employee, biweekly, and are expected to be by direct deposit or debit card.
- Is there a waiting period for DCPFL? There is a 7-calendar day waiting period starting from the date of the qualifying leave event, during which employees will not receive DCPFL benefits. However, an employee who has multiple qualifying leave events during the 52-week period for calculating the 8-week limit on DCPFL benefits will have only one waiting period during the 52 weeks.
- Will employers know when an employee applies for DCPFL? Within 3 business days of an application, DOES will contact the employer to request certain verifying information. Where possible, employers should instruct employees applying for DCPFL benefits to identify a single point of contact for this purpose (e.g., a Human Resources representative knowledgeable about the DCPFL program). The DCPFL law requires employees to give employers advance notice of their need for qualifying leave (10 days’ advance notice if the leave is foreseeable). However, employees who fail to provide this notice can still receive DCPFL benefits.
- Will employers know how much employees are receiving in DCPFL benefits? Not unless the employee shares this information with the employer and/or authorizes DOES to do so. If an employer intends to offset the employer’s own paid leave benefits with DCPFL benefits (more on that below), the employer should require employees, as a condition of eligibility for the employer’s own paid leave benefits, to share their weekly benefit amount with the employer as soon as they receive notice of the amount from DOES and authorize DOES to release the information to the employer.
Coordinating DCPFL with other leave benefits
- How does DCPFL intersect with FMLA and DCFMLA? When the employee qualifies for FMLA and/or DCFMLA, DCPFL will run concurrently with them.
- Does DCPFL take into account the paid leave benefits employees receive from their employer? DOES will not reduce DCPFL benefits for amounts an employee receives from an employer’s paid leave policies. This means that when the employer’s benefits overlap with DCPFL—for example, if the employer offers fully paid parental leave—DOES will nonetheless approve the full DCPFL benefit for the same period if the employee applies for it, which could result in benefits from both sources combined totaling more than 100 percent of regular pay. Duplicative benefits could also arise if an employee applies for DCPFL benefits while on short term disability (although some short term disability plans require offset for benefits received from other sources). Employees on long term disability are not eligible for DCPFL.
- Can employers do anything to prevent duplicative benefits, and if so, what can they do? Employers may not take actions that interfere with an employee’s right to apply for or use DCPFL. However, the DCPFL law allows employers to amend their own policies to coordinate with the DCPFL and avoid duplication. There is no one-size-fits-all approach for coordination; the answer will depend on the policies the employer already has in place and what the employer’s goals are. Various options can be considered, including but not limited to:
- Employees may be permitted to use employer paid leave benefits during the DCPFL 7-day waiting period. For example, the first week of an employee’s parental leave could be covered by an employer’s paid parental leave plan, or accrued PTO or sick leave, if applicable.
- Some employers may want to reduce the amount of employer pay to an employee during leave to account for the DCPFL benefit. Such an employer could require employees to apply for any DCPFL available to the employee as a condition of using employer paid leave benefits, where the benefits overlap—for example, where the employer offers paid parental leave or wage replacement for leave needed due to a medical condition of the employee or a family member. This would allow the employer to run its paid benefits concurrently with DCPFL and to reduce the employer benefit by the amount the employee receives in DCPFL benefits for the same period of time. While this approach is simple in concept, its application can be more complex if, for example, the employer begins paying leave benefits weeks before the DCPFL amount is known. D.C. has not yet provided clear guidance on how an employer can address this issue.
- Other employers may decide that requiring employees to apply for DCPFL and reducing the employer provided benefit is not worth the administrative burden or the impact that this would have on employees who are already satisfied with their employer’s benefits and accustomed to receiving seamless benefits from their employer.
- Employers will also need to make a decision about whether to allow employees to use vacation, sick leave or PTO to “top off” DCPFL benefits that employees receive for family or medical leaves. This may be practical for employees who are already able to request vacation, sick leave or PTO in partial day increments, but could pose administrative challenges for some employers.
- At minimum, employers should consider requiring employees to cooperate in the employer’s efforts to coordinate leave benefits, for example by providing advance notice of leaves when practicable; informing the employer of the employee’s anticipated DCPFL weekly benefit amount as soon as possible; and generally keeping the employer apprised of the status of their claims.
Additional information about DCPFL is available on the DOES website and the DOES Office of Paid Family Leave (OPFL) website. Please contact one of the authors of this article or another Hogan Lovells attorney with whom you work with questions, or for assistance updating your leave policies in light of DCPFL.