April 2, 2018

Universal Paid Leave Proposed Rulemaking

In our last update, we noted it is unlikely that changes will be made to the Universal Paid Leave measure that was enacted last year, and that DC’s Department of Employment Services (DOES) has begun implementation.

On Saturday, DOES posted a Notice of Proposed Rulemaking that would amend the Universal Paid Leave Act by adding a new chapter of clarifying information.

DOES will accept comments to the proposed rulemaking in writing within 30 days of publication of the notice in the DC Register, expected to be this week.

Comments can be sent to Department of Employment Services, 4058 Minnesota Avenue NE, Washington, DC, 20019, or via email to does.opfl@dc.gov

What Does the Rulemaking Propose?

The rulemaking proposes adding a new chapter that clarifies some of the definitions and processes around paid leave. For example, it outlines:

-how an individual applies through DOES for a paid leave benefit;

-how the weekly benefit payment will be calculated;

-the limits of total number of paid leave workweeks (8);

-how an employee must notify an employer;

-requirements for how and when employers must make employees aware of the benefit;

-a general list of the record keeping required by employers; and,

-how the universal paid leave benefit relates to other benefits, such as DC FMLA.

Businesses should particularly note: 

• The regulations clarify that an eligible individual may not receive more than a maximum of 8 workweeks of paid leave during a 52 week period, regardless of the number of qualifying leave events that occur during that 52 week period. For example: an eligible individual can’t take 8 weeks of paid parental leave, and then also take 2 weeks of universal leave for a qualified medical event.
• The leave can be taken intermittently.
• An employee should provide written notice to the employer to the extent practicable, and the reason for leave (within parameters of HIPAA), the beginning and end date of leave, and whether it will be continuous or intermittent.
• There is no exemption for employers who already provide leave benefits. Per the regulation: “A covered employer shall make contributions under subsection 3311 even if the covered employer provides additional leave benefits to their employees.”
• In terms of recordkeeping, per the regulations,”All covered employers shall develop, maintain, and make available to DOES records regarding the employer’s activities related to the Act, including paystubs, personal checks, cash receipts, or bank deposits; work schedules; communications between employer and employee; any circumstantial evidence regarding the employee’s eligibility; and any other record as requested by DOES.”
• In terms of how universal paid leave intersects with Family and Medical Leave Act of 1993 or DC FMLA, if the paid leave in the regulation also qualifies as protected leave pursuant to FMLA or DC FMLA, “the paid leave shall run concurrently with, and not in addition to, leave taken under those other acts.”
• And lastly, the universal paid leave act does not provide job protection “to any eligible individual beyond that to which an individual is entitled under the D.C. FMLA.”

CHAMPS Questions to DOES

CHAMPS submitted questions to DOES in mid-March, some of which are answered by these proposed regulations. Our questions included:

-Are part time and full time employees covered by the legislation?

-If an employee telecommutes from outside DC, are they covered by the legislation? If an employee telecommutes and is not eligible for benefits, does the employer pay the .62 tax on that individual’s salary?

-Will there be fees or regulatory requirements on businesses, such as additional information that they need to file?

-How/when will payroll be audited to determine the tax?  Are we paying .62 on salaries that is determined pay period by pay period?  Or is there an audit and we pay based on an average?  Or determined at the beginning of each calendar year or quarterly?

-When will this be implemented? When will outreach to the business community begin? Will there be an FAQ for the business community on how to comply?

-What kind of system is being put in place to collect the tax? Will this be like the sales tax system? Will this be like the Unemployment Insurance system?

– How will this intersect with the DC Family and Medical Leave Act? If I employ fewer that 20 people, under that measure I don’t have to hold a person’s job. Do I have to hold a person’s job under this legislation?

RESPONSES FROM DOES can be viewed here.

Where Can I Learn More?

Check DOES for updates here.