FMLA - District of Columbia

Employer coverage

The District of Columbia’s (D.C.) family and medical leave provisions apply to any individual, firm, association, corporation, the D.C. government, receiver or trustee of any individual firm, association, or corporation, or the legal representative of a deceased employer, who uses the services of another individual for pay in the District. The law applies to private employers with 20 or more employees on the payroll during 20 or more calendar workweeks in the current or preceding calendar year. If the employer has at least 20 employees in the District, its eligible employees include those employees who work in the District.

Employee eligibility

To be eligible for D.C.’s family and medical leave, an employee must have been employed by the same employer for at least 12 consecutive or non-consecutive months, inclusive of holiday, sick, or personal leave. Employers need not include time worked before a break of seven years or more. Employees also must have worked at least 1,000 hours during the 12-month period before the date on which the leave is to begin.

Unlike the federal FMLA, there is no provision that employees need to work at a site with a certain number of company employees within a certain distance.

Leave entitlement

Eligible employees are entitled to up to 16 weeks of unpaid leave in a 24-month period for medical leave, and another, separate 16 weeks for family leave.

Family leave

Leave rights for a birth or adoption expire 12 months after the birth or placement of the child.

Like the FMLA, leave may be required to be shared by family members who work for the same employer. A “family member” means:

• A person to whom the employee is related by blood, legal custody, or marriage;
• A child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility; or
• A person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship.

An eligible employee may take family leave for:

• The birth of the employee’s child;
• The placement of a child with the employee for adoption or foster care;
• The placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility; or
• The care of a family member of the employee who has a serious health condition.

Medical leave

An employee who becomes unable to perform the functions of the employee's position because of a serious health condition shall be entitled to medical leave for as long as the employee is unable to perform the functions, except that the medical leave shall not exceed 16 workweeks during any 24-month period. The medical leave may be taken intermittently when medically necessary.

Employees may elect to use paid leave during otherwise unpaid DC FMLA leave.

Maintenance of health benefits

Similar to the FMLA, D.C. requires that employers maintain coverage under any group health plan at the same level and under the same conditions that coverage would have been provided if the employee had continued in employment from the day he or she started family or medical leave until the day he or she returns from leave.

An employer may require the employee to continue to make any contribution to a group health plan. If an employee is unable or refuses to make the payment for his or her group health plan premiums, he or she forfeits the health benefits until he or she returns to work and begins making payments to the plan again.

Job restoration

Like FMLA, D.C. requires that an employer:

• Restore an employee to the position he or she held at the time of leave, or
• Restore the employee to a position equivalent to the position held by the employee when he or she began leave that includes equivalent employment benefits, pay, seniority, and other terms and conditions of employment.

Key employees are excluded from job restoration under certain circumstances.

Notice

If family or medical leave is foreseeable, an employee must provide the employer with reasonable prior notice.

Also, if medical treatment or supervision is necessary, the employee must make a reasonable effort to schedule such treatments or supervision, subject to the approval of the health care provider, in a manner that does not unduly disrupt the operations of the employer.

Eligibility

Employees are generally those employed by you, including temporary employees. There are some exceptions, such as independent contractors; however, there is no real eligibility criteria. The employee must accrue leave before taking it.

Employees accrue paid leave according to your established pay period, and begin accruing upon employment. Employees may begin to access their accrued paid leave after 90 days of service. If an employee completes 90 days of service, is discharged, but then returns within 12 months, he or she may access paid leave immediately upon return.

If an employee does not use accrued paid leave during a 12-month period, it is carried over annually. Employees cannot use more than the maximum allowed in one year, unless the employer chooses otherwise.

Unused, accrued paid leave need not be reimbursed upon termination or resignation.

Employees may, if the employer agrees, choose to work additional hours or shifts during the same or next pay period in lieu of hours or shifts missed. In this situation, the employee may not use paid leave as long as the extra work was not required by the employer.

If an employee doesn't lose income because of an absence, you need not provide paid leave. For example, if an exempt employee takes time off but does not lose any wages because of the absence, he would not be able to take paid, accrued leave. The employee would need to suffer a loss of income in order to take advantage of paid leave under this law.

Amount of leave

The amount of leave an employee may take depends upon how many employees are working for a particular company.

An employer with 100 or more employees must provide one hour of paid leave for every 37 hours worked, not to exceed seven days per calendar year.

An employer with at least 25 but not more than 99 employees must provide one hour of paid leave for every 43 hours worked, not to exceed five days per calendar year.

An employer with 24 or fewer employees must provide one hour of paid leave for every 87 hours worked, not to exceed three days per calendar year.

An employer with a paid leave policy, such as a paid time-off program or universal leave policy, is not required to modify the policy if it allows employees to accrue and use leave under terms and conditions that are at least equivalent to the paid leave prescribed in this act.

Determine the number of employees by looking at the average monthly number of full-time equivalent employees for the previous calendar year. Calculate the average monthly number by adding the total monthly full-time equivalent employees for each month and dividing by 12.

Leave taken under the DC Accrued Safe and Sick leave may run concurrently with other leaves, as long as all parameters are met for each law.

Reasons for leave

Paid leave may be used by an employee for an absence:

1. Resulting from a physical or mental illness, injury, or medical condition of the employee;
2. Resulting from obtaining professional medical diagnosis or care, or preventive medical care, for the employee;
3. For the purpose of caring for a child, a parent, a spouse, domestic partner, or any other family member who has any of the conditions or needs for diagnosis or care; or
4. If the employee or the employee’s family member is a victim of stalking, domestic violence, or sexual abuse, provided that the absence is directly related to social or legal services pertaining to the stalking, domestic violence, or sexual abuse, to:
   1. Seek medical attention for the employee or the employee’s family member to recover from physical or psychological injury or disability caused by domestic violence or sexual abuse;
   2. Obtain services from a victim services organization;
   3. Obtain psychological or other counseling;
   4. Temporarily or permanently relocate;
   5. Take legal action, including preparing for or participating in civil or criminal legal proceedings related to or resulting from the domestic violence or sexual abuse; or
   6. Take other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee’s family member or to enhance the safety of those who associate or work with the employee.

Notice

Paid leave shall be provided upon the written request of an employee upon notice. The request shall include a reason for the absence involved and the expected duration of the paid leave. If the paid leave is foreseeable, the request shall be provided at least 10 days, or as early as possible, in advance. If the paid leave is unforeseeable, an oral request for paid leave shall be provided prior to the start of the work shift for which the paid leave is requested. In the case of an emergency, the employer shall be notified prior to the start of the next work shift or within 24 hours of the onset of the emergency, whichever occurs sooner.

Certification

An employer may require that paid leave for three or more consecutive days be supported by reasonable certification. Reasonable certification may include:

1. A signed document from a health care provider, as defined in the District of Columbia Family and Medical Leave Act of 1990, affirming the illness of the employee;
2. A police report indicating that the employee was a victim of stalking, domestic violence, or sexual abuse;
3. A court order; or
4. A signed statement from a victim and witness advocate or domestic violence counselor affirming that the employee is involved in legal action related to stalking, domestic violence, or sexual abuse.

If certification is required, the employee shall provide a copy of the certification to the employer upon the employee’s return to work.

Posting

Employers must post and maintain in a conspicuous place a notice that sets forth excerpts from or summarizes the pertinent provisions of the law and information that pertains to the filing of a complaint. The mayor is to provide this notice to employers. No liability for failure to post notice will arise if the mayor has failed to provide the notice.

Recordkeeping

Employers are to keep related records for at least three years.