District of Columbia Issues New DC FMLA Final Regulations

The District of Columbia has issued new final regulations for the District’s Family and Medical Leave Act (DC FMLA, D.C. Official Code 32-501 et seq.), effective November 19, 2010.

While many provisions of the rules are not new and were included in the Act and in prior regulations, there is new material of which employers need to be aware. The new regulations still apply to employers with 20 or more employees in the District and cover employees who have worked at least 1,000 hours in the last 12 months. (Paid time for holidays, vacation, sick leave, etc. are counted in the 1,000 hours.) However, new provisions explain additional employment conditions: the requirement that an employee work within the District at least 50% of his/her work time (or otherwise satisfy the qualifications for being employed “in” the District), and explanations of “continuous service” and the “7-year break in service” limitation to the service requirement. (Sec. 1603.1, 1603.2, 1603.5)

The leaves available are 16 weeks per 24-month period for an employee’s serious health condition, and 16 weeks per 24-month period for family leave (birth of a child, adoption, or other permanent placement of a child with the employee, or to care for a ”family member” who has a serious health condition.) Family leave still may be taken in a continuous block or on an intermittent or reduced schedule basis when medically necessary. Family leave related to the birth or placement of a child, however, may be taken by agreement on a reduced leave schedule over a period not to exceed 24 consecutive months. (Sec. 1606.4). This agreed upon extended leave, previously available for any family leave, is now limited to child bonding. Also, “family member” now includes a foster child. (Sec. 1699.1)

Changes to employer notice requirements include providing an employee with a written “eligibility letter” within 5 days of the employee’s leave request or notice that the employee needs time off for a qualifying reason detailing the eligibility qualifications identified in the final rule. (Sec. 1613.4) Employers are also required to provide written notice within 5 days of receipt of medical certification of the leave’s designation as DC FMLA or federal FMLA. (Sec. 1613.6) There are also new employer recordkeeping responsibilities which require documenting extensive leave information on an annual basis. (Sec. 1617.6)

Employers must make DC FMLA information available to employees by posting it and including it in its employee handbook or manual. Posting includes displaying a hard copy in a conspicuous place frequented by employees or an electronic copy on the employer’s website. (Sec. 1613.20) Compliance Poster Company’s Washington D.C. All-On-One poster (#83748) features the mandatory DC FMLA notice.

Posted in State Labor Law Changes and tagged , .

39 Comments

  1. I am in DC and the information you provide on the new FMLA regulations has helped me tremendously. Thank you for all of your time & work.

  2. The DCFMLA states “An employee is also entitled under the statute to family leave to attend specified school and family functions and activities” What documentation is required to prove that an employee is attending family functions and activities?

    • There are two types of leave, family and parental, to which you might be referring. There is no leave law in DC for other family functions or activities.

      Family Leave:
      D.C. Code § 32-502 authorizes up to 16 weeks of family leave to qualified employees every 24 months.
      Family leave may be taken for the birth, foster care placement, or adoption of a child or to care for the serious health condition of a family member. Employers may request that an employee seeking DCFMLA leave under this section provide certification from a health care provider. Certification details can be found in D.C. Code § 32-504.

      Parental Leave:
      D.C. Code § 32-1201 authorizes 24 hours of parental leave per year to allow employees to attend school-related events. “School-related event” means an activity sponsored by either a school or an associated organization such as a parent-teacher association. School-related events include student performances, concerts, plays, rehearsals, sporting events, parent-teacher conferences, or any similar type of activity, where the child is a participant or subject of the event, not a spectator.

      For more information, contact the District of Columbia Office of Human Rights at (202) 727-4559 or online at: ohr.dc.gov.

  3. I have used the DCFMLA and Federal FMLA for past health, multiple, issues. However, as a MSS employee, I now face the loss of my job because I am not able to return to work when the leave period has expired. I am told that I cannot take leave without pay anymore and must “vountarily surrender my position” and which my benefits goes with it. I still have health issues that need attending. No one told me that my job would be at risk when/if the leave expired before I was well and back in health.

  4. Does DCFMLA and Federal FMLA runs concurrent or consequetive? If it runs concurrent, then what good does it do to apply for both at once?

  5. Hi Christine,

    DCFMLA Final Rule 1620.2 provides that for “leave which qualifies under both DCFMLA and federal FMLA, the leave shall count against an employee’s entitlement for both laws and shall be counted or applied concurrently under both laws.” Unfortunately, we don’t have enough information to answer your second question. Good luck!

    CPC

  6. Can I take all 32 weeks of DCFMLA, if needed? For example, I had complications with my pregnancy, and used 16 weeks. I used another 16 weeks to bond with my child?

  7. My employer has a policy requiring employees to use up all of their paid leave (sick/vacation) during their FMLA time. I read on another site that this is not allowed by DC law. Is that correct?

    • Hi Karen,

      Unfortunately, we cannot provide advice regarding specific employment circumstances. The answer to this question will depend in part on whether the leave comes under the federal FMLA or District of Columbia DCFMLA.

      Federal FMLA law does permit employers to have policies requiring employees to use accrued paid leave to cover some or all of the FMLA leave. Click here to read FMLA Fact Sheet #28.

      Under DCFMLA, an employer generally may not require the employee to use his or her paid leave while on DCFMLA leave. However, if an employee elects to take paid leave while on DCFMLA leave, the paid leave and the DCFMLA run concurrently. Click here to read D.C. Code § 32-503(b).

      Thanks, CPC

  8. If an individual has been approved for Fmla can an employer discuss the employee’s absences in their yearly evaluation?

    • Thanks for your question.

      The law provides that an employer is prohibited from interfering with the exercise of FMLA and from discriminating or retaliating against an employee for having exercised FMLA rights. However, the law does not necessarily preclude an employer from discussing employee’s absences during an annual evaluation. You can read more FAQs about FMLA here.

  9. Can management reasonably require my primary care physician, who is treating me for a DC FMLA-covered serious illness, sign off on visits to the emergency room and urgent care facilities, on dates for visits he did not personally see me, but with symptons that are consistent with the serious illness he is treating me for?

    Even if the doctor could sign off on the recertification paperwork, shouldn’t the medical records from the emergency room and urgent care facilities be sufficient documentation to satisfy management’s recertification requests?

    Please answer asap. This is very time sensitive.

    • Unfortunately, we are not able to provide specific advice. You should consult with your health care provider and/or legal advisor regarding your specific situation. You might be interested in reading relevant sections of the DCMLA (D.C. Code § 32-501-517) found here and the regulations (D.C. Mun. Regs. tit. 4, § 1600, et seq.) found here.

      Best of luck,

      CPC

  10. Hello again, Under DCFMLA, who pays for the recertification – the employer or the employee? What is the usual time frame when management can ask for a recertification after your initial approval? Thank you, Patrick

  11. My wife and I both work in DC and are expecting a daughter soon. Are we both able to take 16 weeks off to bond with the child?

    • Hi Jeff,

      Unfortunately, we cannot offer specific advice. Please refer to DC FMLA Rule 4-1606 and check with your employer or human resource representative.

      Best wishes,
      CPC Research Dept.

  12. Hi – my company has employees who live in DC, but do no work in DC. All work is done in Maryland. Is my company governed by DC employment and human rights laws (unemployment, business registration, labor law posters, etc) or by Maryland laws? Thanks.

    • Thanks for your question. Under the law, a covered employer is one that employs employees in the District. An eligible employee is an individual who works within the District.

      CPC Research

  13. After an employee exhausts all of their DCFMLA leave 16 weeks,how long would you have to wait until you are eligible to take DCFMLA leave again?Not sure if you can take DCFMLA every year or every 2 years?

    • Hi Shawn,

      Unfortunately, we cannot provide individual advice. Please ask your employer or legal adviser for assistance with your situation.

      Best regards,

      CPC Research

  14. Hello,I’m confused about DCFMLA? If you are granted DCFMLA leave can you exhaust your 16 weeks every year,or do you have to wait for 2 years.How often can you take DCFMLA?

    • Hi Shawn,

      We cannot provide individual advice. Please ask your employer or legal adviser for assistance with your situation.

      Best regards,

      CPC Research

  15. When an employee in on unpaid medical leave, is the employer required to maintain all employer paid health coverage during the period?

    • Hi Jeff,

      The rules state:
      During any period in which an employee takes family or medical leave, the employer shall maintain coverage for the employee under any group health plan (DCMR 4-1609.1);
      The employer shall maintain coverage for the duration of the family or medical leave at the same level and under the same conditions that coverage would have been provided if the employee had not taken the family or medical leave (DCMR 4-1069.2);
      An employer may require the employee to continue to make any contribution to a group health plan that the employee would have made if the employee had not taken family or medical leave. If an employee is unable or refuses to make the contribution to the group health plan, the employee shall forfeit the health plan benefit until the employee is restored to employment pursuant to § 1609.6 and resumes payment to the plan (DCMR 4-1609.4).

  16. How does DC define “original employment’? If an employer is a contractor supporting a customer and the position and/or contract is no longer in place when the employee is ready to return to work, the “original employment” or the job the employee held at the time the employee took DCFMLA leave is no longer available. I assume (but hate to do so) that the employer must restore a position of the same title, compensation and benefits? Please provide further definition.

    • Under DCMR 1609.6, upon return from family or medical leave:
      (a) The employee shall be restored by the employer to the position of
      employment held by the employee when the family or medical leave commenced; or
      (b) If the position held by the employee when the family or medical
      leave commenced is no longer available, the employee shall be restored to a position of employment equivalent to the position held by the employee when the family or medical leave commenced. The position shall include equivalent employment benefits, pay, seniority, and other terms and conditions of employment.

  17. Does everyone who is employed by a DC employer entitled to 16 weeks of leave?
    I have been at the company for exactly one year and the company has about 75 employees.

    • Unfortunately we do not have enough information to respond to your question. In order to qualify for DCMLA the employee must work for a “covered” employer, the employee must be “eligible” for the leave, and the employee must need the leave for a qualifying and certified purpose, as those terms are defined by law. See DCFMLA DC Code 32-501, et. seq. and DCMR 4-1600, et seq. Good luck!

  18. Can your DCFMLA leave be extended beyond the 16 week period in a 12 month period, due to continuing medical treatment? For example, can an employee get approved for 16 weeks, then at the conclusion of the leave period, state that they need more time off because they have not been cleared to return to work?

    • Hi. The DCFMLA provides eligible employees with up to 16 weeks of job-protected unpaid leave in any 24-month period for medical purposes. Unfortunately, the law does not provide for an extension due to continuing medical treatment. Best regards. The Research Team.

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