Additional Employer Obligations Take Effect as DC Paid Family Leave Program Inches Closer to July 2020 Benefit Launch Date

Seyfarth Synopsis: The next round of employer obligations - primarily posting and notice requirements - for DC Paid Family Leave (“PFL”) takes effect on February 1, 2020.  Therefore, covered employers need to act now to meet these obligations and also look forward to planning if, and how, their own internal leave policies may be impacted by the provision of PFL benefits starting July 1, 2020.  Although the law’s final benefit regulations will not be formally effective until March 2020, a draft of those final regulations is pending before the DC Council and are publicly available to inform this employer planning.

Effective February 1, 2020, the DC Paid Family Leave employee notice and poster (published here) must be posted at all worksites in DC alongside other required labor law posters.  A copy of the poster must also be sent to all covered employees who work remotely or predominantly telework so that they may hang the poster at their worksites. Failure to comply with the posting obligation may result in a penalty of $100.00 for each day that a covered employer failed to post the notice in a conspicuous place at each worksite.

In addition to the posting, copies of the notice must be directly provided to employees (either electronically or in hard copy) at three different times:

1. All employees must be provided a copy of the PFL notice at least once between February 1, 2020 and February 1, 2021, and at least once annually thereafter; 
2. All employees hired after February 1, 2020, must be provided a copy of the PFL notice within 30 days of the date of hire; and           
3. Any employee who provides “direct notice” to the employer after February 1, 2020 of a potential need for leave for an event that could qualify for PFL benefits must also be provided a copy of the notice.  (This is true even though benefits are still not available until July 1, 2020.) 

Be mindful that “direct notice” of a potential need for leave for a qualifying event does not have to be a formal notice or request for leave.  An employee gives direct notice if he or she shares information in a manner that makes it clear that the employee intends for the employer to know about the leave event.  DC Department of Employment Services (“DOES”) has provided examples of direct notice that include telling a supervisor that the doctor indicated the employee may have to have major surgery or that a close family member was in a car accident.  Additionally, notice must be provided even if it is not clear that the employee plans to seek leave or paid leave benefits in connection with the event.  Similar to the posting requirement, failure to provide the notice outlined above may result in a penalty of $100.00 for each covered employee who does not receive these individual notices as required.

Employers have the burden of proving required notice was given.  Therefore, depending on the distribution method, it is recommended that employers keep a copy of the notice distributed to employees, along with email read receipts or signed acknowledgments of receipt of the PFL notice from every employee to satisfy this burden.  Employers should also ensure that they maintain records related to any medical, family or parental leave taken by an employee, records relating specifically to PFL leave requests by an employee, records regarding any disputes between the employee and the employer over PFL leave, and records describing the employer’s own leave (paid and unpaid) benefits and programs. 

Employers should act now to not only display the required poster, but also to determine how notices will be provided and how the required records will be maintained.  Additionally, supervisors and human resources and benefits personnel must be trained to understand when they have received “direct notice” of a potential need for leave in order to make sure the required PFL notice is provided.

Looking Ahead

Although we are still five months from the launch of the benefit program, employer planning and preparation for this next phase should begin today.  

As many employers are aware, DC PFL will operate in a manner very similar to the unemployment insurance system - meaning that covered employees will apply for benefits directly to DOES, DOES will collect all documentation and make all benefit determinations (both eligibility and amount) and DOES will directly make those benefit payments to eligible employees.  Thus, in many ways, this system limits employer involvement and eases the administrative burdens of an employer-run leave program.  Nonetheless, there are still critical elements of the law that directly impact employers, in addition to the payment of the quarterly tax.

First, when the benefits officially become available on July 1, 2020, employers are required to respond to DOES requests for information regarding applicants within four business days of receiving the request.  This information is critical to DOES’ determination of benefit eligibility and awards, which must be provided to an applicant within 10 business days of the application for benefits.  Therefore, employers need to have a process in place to timely respond to these requests for information.  This, along with notice and recordkeeping requirements, are the primary manners in which employers are involved in an employee’s receipt of DC PFL benefits.

But perhaps more importantly, employers should examine how their own policies and leave programs will be impacted by DC PFL benefits.  Specifically, although an employer cannot prevent or interfere with an employee’s ability to apply for and receive DC PFL benefits, the law expressly permits employers to amend employer-provided leave policies.  This means that employers are free to institute policies that prevent employees from receiving more than 100% income replacement as a result of receiving both PFL and employer-provided leave benefits.  Under the law, an employee’s eligibility or right to receive employer-provided benefits while also receiving DC PFL benefits will be determined by the employer’s policies.  Therefore, it is important to review and modify policies as necessary well in advance of the July 1, 2020 launch date.

Seyfarth will continue to monitor and update you on DC Paid Family Leave benefits and what employers can expect when employees begin filing claims for Paid Family Leave.