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Big changes are in store for workers and employers in Washington, D.C. A recently passed law will impose a new tax on D.C. employers while establishing new rules allowing workers to take paid family leave. Both employers and workers must familiarize themselves with these changes.
While the D.C. law applies only to a single city, it has wide-ranging implications. A national movement is underway to seek passage of state and local paid-leave laws. The D.C. experience may serve as a model for state or local legislation elsewhere.
Chamber, Mayor Opposed Paid-Leave Bill
In December 2016, the District of Columbia City Council passed the D.C. Universal Paid Leave Amendment Act of 2016 (UPLAA).
It will guarantee certain periods of paid family and medical leave to private-sector employees starting on July 1, 2020. Payments will be funded by an additional 0.62 percent employer payroll tax that the city will collect from private-sector employees starting on July 1, 2019.
The D.C. Chamber of Commerce vigorously opposed the UPLAA in the form that was finally enacted. Mayor Muriel Bowser argued that it would effectively impose a $250 million tax increase on D.C. employers, while much of the benefit would go to residents of Maryland and Virginia who work in the city. However, Bowser did not veto the bill.
While the opposition put much of its focus on the added tax burden on D.C. employers, businesses should also note that the new law will entitle employees to take paid family and medical leave in a variety of circumstances where prior laws did not entitle them to take even unpaid leave.
Employers will have to scramble more frequently to adjust or reassign duties to get needed work done when employees take universal paid leave.
Shorter Paid-Leave Periods
The starting point for leave entitlement is the D.C. Family and Medical Leave Act (DCFMLA), which allows eligible employees in D.C. to take 16 weeks of unpaid leave for qualifying family and medical reasons.
The DCFMLA is more generous than the federal Family and Medical Leave Act (FMLA), which requires employers to provide only 12 weeks of unpaid leave for qualifying family or medical reasons.
Paid leave under the UPLAA, however, will be provided for shorter periods:
Cumulatively, no more than eight weeks of paid leave total in a 52-week period will be available under the UPLAA.
The new UPLAA leave entitlement will apply to more private-sector employees—and in more circumstances—than the DCFMLA.
First, new employees will be entitled to take paid family or medical leave in circumstances in which they currently have no entitlement to take even unpaid leave.
Currently, to qualify for unpaid leave, an employee must have worked for the employer for at least one year preceding the leave request. No such conditions apply to the UPLAA. To be eligible under the UPLAA, an individual must have been a covered employee "during some or all of the 52 calendar weeks immediately preceding the qualifying event."
So once the new law takes effect, for example, a new employee could start a job and shortly thereafter go out on paid UPLAA leave for six weeks to care for a seriously ill family member. Intermittent days of paid leave are also an option, meaning that the paid leave need not be taken on consecutive workdays.
Second, the UPLAA provides paid-leave rights to part-time employees, as long as they worked for the employer at some point in the prior year. In contrast, the current local law only provides a right to unpaid leave to employees who have worked at least 1,000 hours during the 12-month period prior to the request for family or medical leave—the federal FLMA threshold is 1,250 hours in a 12-month period.
Third, the UPLAA applies to all private-sector employers regardless of size, except for those that are exempt from taxes in D.C. by federal law or treaty. The UPLAA for the first time gives employees of small businesses with fewer than 20 employees the right to take leave for qualifying family and medical reasons.
A clause in the law suggests that employees who work for an employee with fewer than 20 employees are not entitled to "job protection" (i.e., restoration of their job) when they return from paid leave.
In contrast, current local unpaid leave requirements do not apply to employers with fewer than 20 employees, and the federal law does not apply to employers with fewer than 50 employees.
Fourth, the UPLAA broadens—albeit slightly—the class of family members for whom leave can be taken. The DCFMLA requires covered employers to grant unpaid leave for the care of family members with serious health conditions, to include:
The UPLAA, however, adds to that list the following:
The UPLAA also includes a variety of provisions aimed at protecting employees from retaliation for exercising or seeking to exercise their new rights to paid leave. One provision forbids an employer from retaliating by reporting, or threatening to report, an employee's "actual or suspected citizenship or immigration status" to federal, state or local agencies.
The bottom line is that more private-sector employees are going to be eligible for paid leave than for unpaid leave, though the periods available for paid leave will be shorter.
In Washington, D.C., both employers and workers will need to adjust to the different regimens for paid leave and unpaid leave—and other cities are advised to keep watch on this and other developments surrounding the issue of paid leave.
Daniel I. Prywes is an attorney with Morris, Manning & Martin in Washington, D.C.
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