D.C. Paid Family Leave: One Year In, Is Your Nonprofit in Compliance?

In July 2020, the District of Columbia began providing virtually all D.C. employees with up to eight weeks of paid leave per year for qualifying family, sick, and parental leave-related events.

Employers are not responsible for administering or paying these new paid family leave (PFL) benefits; instead, employees claim the benefits directly from the D.C. Department of Employment Services (DOES). Nevertheless, employers have a variety of responsibilities and considerations with respect to the PFL program. Three key responsibilities include:
 

1. Allowing Employees to Take PFL Leave When Eligible

PFL provides all D.C. employees with up to eight weeks of paid leave per year for any combination of three covered events:

• Parental leave to bond with a new child (up to eight weeks);
• Family leave to care for family members with serious health conditions (up to six weeks); and
• Personal medical leave to take care of your own serious health conditions (up to two weeks).

PFL does not provide 100 percent wage replacement. Instead, PFL provides 90 percent wage replacement for up to 1.5 times the D.C. minimum wage and then 50 percent wage replacement for any additional wages, up to a cap of $1,000 per week.

PFL benefits are processed and paid directly through D.C. DOES. Employers do not receive or pre-approve leave requests, but they are entitled to notice of foreseeable leave events. While the PFL program does not itself provide job-protected leave, job protection may be available under laws such as the Family and Medical Leave Act (FMLA); furthermore, employers cannot retaliate against employees for applying for or claiming PFL benefits.

Employers cannot prohibit an employee from accessing PFL leave or limit their ability to do so. Employers are allowed to provide family and medical leave benefits that supplement or run parallel to the PFL program, but employers cannot attempt to replace or override the PFL program with their own offerings. In other words, any employer-provided leave program must still allow employees to take PFL leave whenever they are eligible under the District’s criteria.

Nonprofits that already provide their own sick, family, and/or paternal leave benefits should consider coordinating those benefits in light of PFL availability. For example, nonprofit employers may require that employees use PFL as their first resort when a qualifying event occurs, then provide additional leave or financial benefits on top of what is provided by the District.
 

2. Giving Employees Notice of Paid Family Leave Benefits

Employers are required to provide notice of PFL benefits and eligibility to their covered employees. Notice must be provided in multiple forms and circumstances, including:

• Permanent Notice (Physical Posters)
  • Employers must post the PFL notice form in a permanent, conspicuous physical location.
  • For covered remote/telework employees, employers must send a copy of the poster to workers so they can hang it at their individual worksites.
  • For employers with multiple worksites, a PFL poster must hang at each site where business is conducted or where services or industrial operations are performed.
  • For employers with distinct and physically separate departments in the same building, a poster should hang in each separate department’s common space.
  • If your business has workers who perform business activities in many different locations, but those locations are not the business’ own worksites (e.g. workers who travel to customers’ homes), the PFL poster should hang in the District location where workers report to every day.
• Periodic/As-Needed Notice – Employers must also provide the PFL notice form to employers at each of the following times:
  • Once annually to all employees – All employees must receive either a paper or electronic (i.e. attached to an email) version of the PFL notice at least once a year.
  • To individual employees at the time of hire – A PFL notice must be provided to all new employees hired after February 1, 2020 within 30 days after hire. The notice can be in paper or electronic form.
  • To individual workers when they receive notice that a worker may need to use PFL – Employers must provide a PFL notice to individual workers whenever they are aware that leave is, or will be, needed by that individual. The worker does not need to submit a formal or written request for leave to trigger the notice requirement. If an employer becomes aware via circumstantial evidence that leave will be required, the employer must provide a leave notice.

Penalties for failing to provide PFL notice are $100 for each covered worker who did not receive an individual notice and/or $100 for each day that a covered employer failed to post the notice in a conspicuous place at each worksite.

DOES provides legally complaint PFL notices, in multiple languages.
 

3. Paying PFL Taxes and Keeping PFL Records

The PFL program is funded by 0.62 percent quarterly payroll tax on the wages of covered employees. DOES has been collecting the PFL tax since the summer of 2019. Employers with over five employees (with the assistance of third-party payroll administrators, if applicable) report and pay their PFL contributions on a quarterly basis through the same online Employer Self-Service Portal (ESSP) they use to pay UI contributions. Employers with under five employees can pay DOES directly and do not have to use the ESSP system.

In order to calculate and report PFL obligations, employers are required to keep records of the following for each covered employee:

• name and Social Security number, or, if the Social Security number is unavailable, tax identification number, of each covered employee;
• the beginning and ending dates of each pay period;
• the wages paid for each pay period, including the cash value of other remuneration, gratuities, and tips and expenses incurred by each covered employee for which a deduction from wages is claimed;
• method of payment;
• earnings of employees; and
• the dates on which wages were paid.