On May 7, 2010, the D.C. Office of Human Rights ("OHR") issued its notice of intent to amend the current regulations for the D.C. Family and Medical Leave Act ("DCFMLA"). In large part, the proposed regulations comport with the federal regulations for the FMLA. However, the proposed regulations contain several additional and more burdensome requirements for D.C. employers, including expanding the DCFMLA's coverage to include employees outside the District. Thus, if these regulations are enacted, D.C. employers will need to revise their current family and medical leave practices and procedures to ensure compliance with the law.
Expansion of Definition of Covered Employers
The DCFMLA applies to any employer that employs 20 or more employees in the District of Columbia and provides more expansive leave than the FMLA. Specifically, eligible employees are entitled to 16 weeks of family leave and 16 weeks of medical leave within a 24-month period. Thus, conceivably, an employee in the District of Columbia could receive up to 32 weeks of job-protected leave in 24 months, as opposed to the 24 weeks in a two-year period provided under the FMLA.
Currently, an employee of a D.C.-based company who works in Maryland or Virginia is not eligible for leave under the DCFMLA. The proposed regulations seek to expand coverage to include these employees. Consequently, any employee who works within 75 miles of the District's borders may be eligible for DCFMLA leave, so long as he or she works for an employer that employs at least 20 employees in the District of Columbia. This change is extremely significant, as it requires D.C. employers with offices in Southern Maryland and/or Northern Virginia to offer DCFMLA leave for eligible employees in those offices, even if those offices are comprised of only one or two employees.
Increased Employer Notice Requirements
Although the federal regulations for the FMLA contain a requirement that employers notify employees of their eligibility for leave under the FMLA, such notice may be oral or in writing. Pursuant to the OHR's proposed regulations, within five days after an employee's request for leave under the DCFMLA, an employer is required to provide written notice to the employee in the form of an eligibility letter. The eligibility letter must notify the employee of the following information:
- Whether the employee is an "eligible employee" for purposes of the DCFMLA;
- If the employer determines that the employer is not an "eligible employee," the reasons for the employee's ineligibility;
- The specific expectations and obligations of the employee under the DCFMLA and, if applicable, federal FMLA;
- The employee's rights under the DCFMLA and, if applicable, federal FMLA;
- The number of hours of leave that are available to the employee under the DCFMLA and, if applicable, federal FMLA; and
- That the employee must submit a medical certification, if such certification is required by the employer.
Additionally, under the proposed regulations, once an employee uses 14 weeks of family leave or medical leave within a 24-month period, the employer must notify the employee in writing of the following:
- The employee's remaining amount of DCFMLA leave time;
- The date on which the employee's DCFMLA leave time will expire;
- The date on which the employee is expected to return to work after the expiration of the employee's DCFMLA leave time; and
- The consequences to the employee for not returning to work by this date.
Thus, employers must closely monitor the time in which an employee is out on DCFMLA leave, so that the employer is prepared to send out this notice immediately at the end of the fourteenth week. Failure to follow any of these notice requirements, including the 14-week "reminder notice," may constitute an interference with, restraint, or denial of the exercise of an employee's DCFMLA rights.
Changes in the OHR's Investigations
In lieu of filing a private cause of action, D.C. law permits an aggrieved employee to file a complaint with the OHR. Under the current law, an employee may choose whether to engage in mediation, but, under the proposed regulations, all complaints filed with the OHR must be mediated before the OHR commences a full investigation. If mediation is not successful and the OHR commences an investigation, it will have 90 days to complete such investigation (as opposed to the current regulation's 30-day requirement).
Significance of the Proposed Regulations
While many D.C. employers may be fully complying with the current DCFMLA or the federal FMLA, the proposed regulations impose significant additional requirements, such as expansive coverage and written notice obligations. These regulations may take effect as early as June 7, 2010, depending on the number of comments received by the OHR. Accordingly, all companies doing business in the District of Columbia should review their policies and ensure that procedures are in place to comply with these proposed regulations as soon as they are enacted.