As a result of a surplus in its Universal Paid Leave (UPL) Fund, the District of Columbia will increase the number of weeks of paid leave available to eligible employees, while decreasing the employer contribution rate. These changes are the result of legislation that became effective immediately upon Mayor Muriel Bowser’s signature, although the paid leave benefit increases will not be implemented until October 1, 2022. A previous alert on this topic is copied below for reference.

• Allowed leave amounts within a 52-workweek period will increase as follows:
  • Parental leave increases from 8 weeks to 12 weeks
  • Family leave increases from 6 weeks to 12 weeks
  • Medical leave increases from 6 weeks to 12 weeks
  • Prenatal leave remains the same at 2 weeks
• Under most circumstances, employees will be allowed a maximum total amount of leave of 12 weeks within a 52-workweek period (up from 8 weeks). However, an employee who qualifies for parental leave following prenatal leave may take maximum amount of both leave types, for a total of 14 weeks.
• Effective July 1, 2022, employer contributions to the UPL Fund will decrease to 0.26% (down from 0.62%) of an employee’s salary.
• The one-week waiting period for benefits is permanently eliminated.

Washington, D.C. Universal Paid Leave Benefits Begin July 1, 2020 (originally sent 6/17/2020; edited for clarity)

The 2016 Universal Paid Leave Amendment Act (DC UPL) created a city-run program for providing paid family, parental, and medical leave for covered DC employees. This program is funded by an employer payroll tax, which went into effect in July 2019. Covered employees can begin accessing UPL benefits on July 1, 2020.

Benefits Implementation

• Employees may receive up to a total of eight weeks of UPL taken for any reason during a 52-workweek period.
• Employers will not administer or pay DC UPL benefits, but must meet requirements for providing information to help determine eligibility and benefit amounts.
• DC UPL benefits will operate similar to the District’s unemployment benefits. Covered employees will apply for benefits directly to the Department of Employment Services (DOES), which will collect all documentation and make all benefit determinations including eligibility and amount of benefits. DOES will make direct benefit payments to eligible employees.
• In order to facilitate the requirement for DOES to determine eligibility and benefit awards within 10 business days of the application for benefits, employers must respond to DOES requests for information regarding applicants within four business days of receiving requests. Employers should have a process in place to ensure timely response to requests for information.
• While UPL benefits are not available until July 1, 2020, employees may qualify for parental leave benefits for a birth or adoption that occurred before that date. Parental leave benefits are available for up to one year after a new child’s arrival.
• Employees may choose to take UPL continuously or intermittently, with a minimum increment of one day of intermittent UPL.

Interaction with Other Benefits

• Employers should ensure that they are aware of how DC UPL coordinates with other leave benefits. Additionally, many changes have been made in terms of local and federal leave entitlements in the wake of COVID-19. Some of these changes impact eligibility for and implementation of DC UPL.
• Employers may amend their existing or future short-term paid leave policies to ensure that combined employer-provided paid leave and UPL do not exceed an employee’s regular wage.
• Employees receiving long-term disability benefits are not eligible for UPL.
• UPL benefits must run concurrently with unpaid FMLA leave taken for the same qualifying reason.
• UPL regulations are silent on how UPL interacts with paid sick leave under DC’s Accrued Sick and Safe Leave law.
• Individuals who are receiving unemployment benefits are not eligible for UPL.
• DC UPL may, in some very limited circumstances, overlap with the emergency paid sick leave provided under federal law. The Families First Coronavirus Response Act (FFCRA) specifies that the paid leave it provides is in addition to any benefits under state and local leave laws. However, while the FFCRA provides paid leave when a child’s school or place of care is unavailable, DC UPL does not recognize this as a qualifying event and therefore does not overlap with FFCRA leave in this case.
• Under the FFCRA, employees can elect (but employers cannot require) to use the temporary emergency unpaid leave the federal law provides before taking other leave available under other applicable laws or the employer’s policies. Qualifying events under the FFCRA may overlap with DC UPL if the leave is taken due to COVID-19 to care for someone with a serious health condition.
• Expanded emergency paid sick leave under the expanded DC Accrued Sick and Safe Leave Act remains in effect until July 24 (unless it is extended), and will overlap with the UPL program. If an employee chooses to take expanded emergency sick and safe leave concurrently with UPL leave, the employer can reduce the amount paid for DC sick leave by the amount of UPL leave the employee receives.

Notice Requirements

• The DC UPL law includes specific notice requirements along with fines for failing to adhere to them.
  • Employers were required to post notice about UPL benefits effective February 1, 2020. Notice should be posted at all worksites in DC alongside any other required labor law posters. A copy of the notice must also be sent to any remote worksites and to covered employees who telework.
  • The notice has been updated since it was originally released. Employers should ensure that the correct version of the notice is posted.
• A copy of the PFL noticemust be provided to all employees between February 1, 2020 and February 1, 2021, and at least annually thereafter.
• The PFL notice must be provided to all new employees hired after February 1, 2020 with within 30 days.
• Any employee who, after February 1, 2020, provides direct notice to their employer of a potential need for leave that could qualify for PFL benefits must be provided a copy of the notice.
  • The employee does not have to make a formal request for leave to trigger the notice requirement; if the employee shares information that makes it clear that the employee intends for the employer to know about the leave event, then direct notice has been given.
  • The PFL notice must be provided to the employee even if it is not clear that the employee plans to seek paid leave benefits in connection with the event.
• Failure to comply with any provision of the notice requirement can result in a fine of $100 per day of non-posting, and/or $100 per covered employee who does not receive individual notice as required.
• Employers must be able to prove that required notice was given. Employers should maintain copies of notices distributed to employees and collect email read receipts or signed acknowledgments of receipt of PFL notice from each employee.
• Employers should also ensure that they keep records related to family, medical, or parental leave taken by employees, PFL leave requests, any employer/employee disputes over PFL leave, and the employer’s own paid and unpaid leave benefits and programs.
• Employers should create a plan for supervisors and human resources/benefits personnel to be trained to understand when “direct notice” of a potential need for leave is given by an employee in order to ensure that the PFL notice is provided as required.

Quarterly Payment of UPL Tax and Exceptions Process

• DC UPL is funded by taxes paid by employers based on the number of covered individuals they employ.
• Private sector employees are covered by the UPL law if they spend at least 50% of their work time (full or part time) in DC and their employer pays DC unemployment insurance taxes for one or more employees.
• There is a formal process for employers to request UPL exceptions for specific employees when those employees work infrequently in DC or work remotely from another jurisdiction.
• Employers should review DC UI standards to ensure that they are paying UPL payroll taxes for the correct employees. Consistent with federal “localization of work” guidelines, employees are always covered by the DC UPL law, with no exceptions, if they:
  • work in the city during a particular quarter and are reported by the employer to the DC Unemployment Insurance program
  • engage in temporary, transitory, or incidental work performed outside DC
• Telework is considered “incidental” because the location of teleworking employees is not essential to the performance of the work. Employees of DC-based employers, who work outside DC, are generally covered by DC UPL law.
• To qualify for an exception, an employee must
  • perform work outside DC that is not temporary, transitory, incidental, or isolated, and
  • spend more than 50% of their work time in a jurisdiction other than DC
• Employers must reapply each quarter to request an exception (using the DOES cover letter) and pay the full quarterly payroll tax for the employee while the application is pending. If the exception is granted, the city will credit the quarterly payroll taxes for that employee to the employer’s account after the determination to grant the exception is made. An acknowledgement form must be signed by the employee and filed with DOES.
• DC UPL payroll tax, which is outlined in the contribution regulation finalized last year, is entirely paid by employers.
• Employers can use the DOES quarterly tax calculator to estimate their quarterly payments.
• After completing Form UC-30, employers or their payroll vendors must submit quarterly wage reports  using Form PFL-30 and pay the 0.62% quarterly payroll contribution via the Employer Self-Service Portal.