by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Lana L. Rupprecht, Esq. - Director, Product Compliance
September 27, 2021
Sitting in the shadow of the controversy over whether the Feds will pass a paid family and medical leave program, the District of Columbia has not shied away from its own PFML program. Two significant new laws (well really, a collection of laws) have expanded D.C.’s Universal Paid Leave (UPL) program and, in effect, provide more pay for many employees using the medical portion of the paid leave.
D.C.’s UPL program, which we previously wrote about here, was recently amended as part of D.C.’S budget for fiscal year 2022. The changes include:
- Prohibiting short term or temporary disability insurance carriers from offsetting the UPL paid medical leave benefits against amounts owed under an STD policy effective October 1, 2021 (but see below: also in effect May 26, 2021, through March 11, 2022 under previous emergency and temporary bills); and
- Increased duration of employee paid leave entitlements effective October 1, 2021.
The legislative history is confusing, so we chopped out that part of our original draft of the post. What you need to know are the effective dates we share below. We’ll refer collectively to the succession of bills that got us to where we are now as “the Amendments.”
First up: No UPL offsets for insured STD policies.
The Amendments incorporate the previous offset prohibitions contained in prior emergency legislation. These are in effect collectively from May 26, 2021, through March 11, 2022.
- Under the prior laws and the Amendments, insurers are prohibited from offsetting or reducing temporary or short-term disability (STD) benefits under an insurance policy based upon actual or estimated UPL paid leave benefits received by an employee.
- This prohibition does not apply to “self-insured employers” – defined as employers who use their own resources to pay its employees’ family, medical, STD, or related leave benefits rather than providing such benefits through an insurance company and employers who contract with a third-party insurer to administer their self-funded leave benefits program.
- It also does not apply to insurance carriers administering employer-funded STD plans for employers.
At the time of the initial emergency and temporary legislation, UPL provided only 2 weeks of paid leave benefits for an employee’s own medical condition. Insurers will feel more of an impact due to the increased amount of paid leave contemplated by the Act discussed below.
Next: The UPL (Paid Leave) Changes.
The Amendments expand UPL’s paid leave provisions, beginning October 1, 2021:
Pre-natal Leave Added.
- Employees may take up to 2 weeks of paid pre-natal leave relating to routine and specialty appointments, exams and treatments associated with a pregnancy provided by a health care provider. This includes pre-natal check-ups, ultrasounds, treatment for pregnancy complications, bedrest prescribed by a health care provided and pre-natal physical therapy. Pre-natal care was not previously called out separately as a UPL leave reason.
- The two weeks of paid pre-natal leave is in addition to the total amount of paid parental leave permitted in a given year which, as of October 1, 2021, will be a total of 10 weeks of paid leave (2 weeks pre-natal + 8 weeks of parental).
Additional Leave for an Employee’s Own Serious Health Condition. As of October 1, 2021, employees may receive up to 6 weeks of paid leave associated with their own serious health condition. Previously, the UPL permitted just 2 weeks.
Progressive Annual Expansions of Leave.
- The Amendments contemplate annual increases – up to 12 weeks – in the amount of paid parental leave, employee serious health condition leave, or family serious health condition leave.
- Employees may still not exceed 8 weeks of paid leave benefits in a 52-workweek (or whatever the maximum amount of parental leave is at the time a claim is made) EXCEPT when combining pre-natal and parental leave as discussed above.
No Elimination Period (At Least for Now). The 7-day elimination period is temporarily removed for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency.
30-Day Claim Period. Employees may submit a claim for paid leave up to 30 days after they qualify for leave. An employer may waive this 30 day period if the employee is unable to apply for his or her paid leave benefits due to “exigent circumstances.”
Temporary Revised Calculation of Average Weekly Wage. The calculation of the average weekly wage for the employee contribution amount also will temporarily change (for claims filed “after October 1, 2021” until 1 year and 1 day after the end of the COVID-19 public health emergency) so that the lookback period is the highest four out of ten quarters—rather than the highest four of the last five quarters.
Finally: Changes Impacting D.C.’s FMLA
- The Amendments also expand coverage under the District’s unpaid but job-protected Family and Medical Leave Act to employees who were employed by the same employer for at least 12 consecutive or non-consecutive months.
- Leaves will still run concurrently if the leave qualifies under both D.C. UPL and D.C. FMLA. However, as we previously reported, there may be situations where some employees may be entitled to UPL leave but not D.C. FMLA leave and thus be without job protection.
- As always, the federal FMLA will run concurrently with either law if it applies.
Universal Paid Leave Amendment Act Resources
Paid leave regulations:
MATRIX CAN HELP! At Matrix we’re always monitoring state legislatures to keep an eye on the state leave landscape. Our trained staff of absence management experts specialize in understanding the intersection of state and federal leave protections. For more information about our leave management and accommodation solutions, contact your Matrix/Reliance Standard account manager now, or send us a message at [email protected].