Changes to D.C. Employment Laws Affects Leave, Contractor Classification & More

The last quarter of 2022 saw several important updates to the District’s employment laws, with more changes just around the corner. Nonprofit employers, in particular, should be aware of the following recent developments:

Recent Changes

Expanded Benefits Under D.C. Paid Family Leave (DCPFL): Employees can now access up to 12 weeks of D.C.-paid leave within a 52-week period under the District’s universal paid leave program. The program provides wage replacement for workers to take leave to bond with a new child, care for a family member with a serious health condition, and/or care for their own serious health conditions. Pregnant workers can also claim an additional two weeks of prenatal leave in addition to the 12-week cumulative leave cap. Employers should post the updated workplace notice and provide the notice to employees per DCPFL requirements.

Prior to an amendment effective October 1, 2022, workers were capped at eight weeks of total leave and had a six-week sublimit for both family and medical leave. Now workers can take 12 weeks for any mix of sick, family, or parental leave under the expanded program.

Notice of Expanded Eligibility under D.C. Family and Medical Leave Act (DCFMLA): The D.C. Office of Human Rights has released a new workplace poster communicating changes to the D.C. Family & Medical Leave Act (DCFMLA) made in 2021. DCFMLA applies to employers with 20 or more employees and provides up to 16 weeks of family leave (e.g. parental leave or leave to care for a sick relative) and 16 weeks of personal medical leave during a 24-month period. DCFMLA leave is job-protected but unpaid; however, employees are allowed to draw from accrued PTO or to access their DCPFL benefits while on DCFMLA leave.

An amendment in 2021 significantly expanded DCFMLA eligibility by allowing any employee to qualify who has, on the date of their leave request, worked 12 consecutive or non-consecutive months within the last seven years and at least 1,000 hours within that 12-month period. Previously, only employees who had worked at least 12 consecutive months and at least 1,000 hours during that unbroken period were eligible for DCFMLA leave.

New Parking-Related Compliance Requirements for Nonprofits with At Least 20 Employees: D.C. has significant new requirements for all employers with 20 or more employees related to parking benefits. For employers that provide free or subsidized parking benefits to some or all of their employees, the Transportation Benefits Equity Amendment Act (TBEAA) of 2020 now requires them to either:

1. pay employees a “cashout” to purchase transit benefits in lieu of using their parking benefits;
2. pay the D.C. Department of Transportation (DDOT) a $100/month compliance fee per employee who is offered a parking benefit; or
3. engage in a DDOT-approved Transportation Demand Management Plan that will eventually reduce the number of car-based commuter trips made by employees. Visit DDOT’s goDCgo website for more information about TBEAA, including situations that exempt an employer from the Act.

All employers with 20 or more employees must start making biennial reports to DDOT regarding their compliance with TBEAA or their reason for claiming an exemption from the Act, including employers that do not offer parking benefits. The first reports were due January 15, 2023 via DDOT’s reporting dashboard. DDOT encourages any employer who missed the January 15 deadline to contact the agency as soon as possible at parkingcashout@dc.gov to ensure compliance.

D.C. Noncompete Ban: October 1, 2022 marked the start of D.C.’s comprehensive ban on non-compete agreements and anti-moonlighting restrictions. See our prior newsletter article for more information.

D.C. Human Rights Act Amendment: The District’s main statute governing discrimination and harassment, the D.C. Human Right Act, was amended in October 2022 to:

1. add homeless status as a new protected trait,
2. expand the Act’s employment provisions to include contractors and interns, and
3. lessen the burden for finding unlawful workplace harassment under the Act.

See our article in this newsletter for more information.

On the Horizon

DOL to Codify “Economic Realities” Test for Independent Contractor Status: The federal Department of Labor (DOL) is expected to adopt a final rule sometime in 2023 codifying its proposed multi-factor test for analyzing whether a worker is an employee or an independent contractor under the Fair Labor Standard Act (FLSA). The new test will focus on whether a worker is “economically dependent” on an employer by analyzing six key factors:

1. the worker’s opportunity to realize profit or loss based on their own managerial skills;
2. the nature and degree of the employer’s control over the worker;
3. the existence of capital or entrepreneurial investments by the worker;
4. the degree of permanence of the work relationship;
5. the extent to which the worker is involved in an integral part of the employer’s business; and
6. whether the worker independently exercises specialized skill and business initiative.

This six-factor approach is similar to the “economic realities” test that has been used in a number of jurisdictions—including within D.C. courts and employment agencies—and by the DOL itself until 2021, when a more “streamlined” five-factor test (focusing primarily on factors 1 and 2, as described above) was proposed by the Trump administration.

The DOL’s expected 2023 rule will formally rescind the 2021 test and provide the agency’s most robust explanation yet of the six-factor “economic realities” framework. Employers should prepare to familiarize themselves with the final rule and to reevaluate their independent contractor classifications to ensure that workers are properly classified under the new test.

D.C. Cannabis Use Protections for Employees: Passed in fall 2022, but still awaiting funding from D.C. Council, the D.C. Cannabis Employment Protections Amendment Act (DCCEPAA) will prohibit employers from refusing to hire, firing, or taking other adverse actions against employees for recreational marijuana use, participation in a medical marijuana program, or for failing a marijuana drug test. Employers do not have to accommodate marijuana use on-the-job or during work hours and can still take adverse action against employees who manifest specific marijuana-related symptoms that “substantially decrease or lessen the employee’s performance” of job duties or that “interfere with an employer’s obligation to provide a safe and healthy workplace” as required by District or federal health and safety laws. The Act also exempts employees in certain “safety-sensitive” positions and employers who are required by federal law, contracts, or funding agreements to prohibit marijuana use.

The Act is scheduled to go into effect on July 13, 2023 but is currently unfunded —including in the current proposed FY24 budget— meaning that its implementation could be postponed to an even later date.