And Now . . . Washington D.C. PFML

Posted on: January 24, 2020 0

by Marti Cardi, Esq – Vice President Product Compliance

January 23, 2020

The next paid family and medical leave program to go live with payment of benefits – in the District of Columbia – is on the horizon.  D.C.’s Universal Paid Leave (UPL) program was passed in 2017, and employers with employees in the District started paying contributions to the program on July 1, 2019. The District will start paying benefits on July 1, 2020.

First Up – Employer notice obligations.

Under DC UPL, employers have several notice obligations:

  • By February 1, 2020, employers must post a physical notice of the UPL program in a conspicuous
    place in each workplace. In addition, employers must send the notice to remote workers so they
    can post it in their individual workplaces.  (Right, like that will happen.)  The notice form is available here.
  • In addition, this notice must be provided in electronic or physical form to:
    • All employees at least once between February 1, 2020 and February 1, 2021 and at least
      once a year every following year;
    • All new employees hired after February 1, 2020, within 30 days after the date of hire; and
    • Individual employees when the employer receives direct notice after February 1, 2020,
      of the employee’s need for leave for an event that could qualify for PFL benefits.
Matrix can help its clients with DC employees to satisfy this individual notice requirement.  We will update the informational packet sent to DC employees to include the required notice when any leave is requested. 

Summary of Universal Paid Leave provisions:

As a reminder, here’s what’s coming your way as an employer with D.C. employees:

Covered Employee
During some or all of the 52 weeks immediately preceding leave:

  • Spends more than 50% of work time in DC or
  • Spends a substantial amount of work time in DC and not more than 50% of work time
    in another jurisdiction
Covered Employer All employers with one or more covered employees except:

  • The United States
  • The District of Columbia, and
  • Any employer that the District of Columbia is not authorized to tax under federal law or treaty
Leave Reasons
  • Employee’s own serious health condition (defined very similar to FMLA)
  • Family member’s serious health condition
  • Bonding with new child (birth, adoption, foster placement)
Covered Family Members
  • Son or daughter (any age)
  • Parent (including step, in-law, and others)
  • Spouse / domestic partner
  • Sibling
  • Grandparent
Duration in a 52-week period
  • Employee’s serious health condition:  2 weeks
  • Parental/bonding leave:  8 weeks
  • Family member serious health condition:  6 weeks
  • TOTAL may not exceed 8 weeks of paid leave benefits in 52-workweek period
Leave Use Increments
  • Continuously or
  • Intermittently in increments of no less than one day
Benefit Amount

 

 

  • Employees who make 150% or less than the District’s minimum wage multiplied by 40
    will receive 90% of their average weekly wage.
  • Employees who make greater than 150% of the District’s minimum wage
    multiplied by 40 will receive:

    • 90% of 150% of the of the District’s minimum wage
      multiplied by 40; PLUS
    • 50% of the amount by which the eligible individual’s
      average weekly wage exceeds 150% of the District’s minimum wage multiplied by 40
Maximum Benefit
  • $1,000/week thru 9/30/2021
  • Adjusts annually as of October 1 each year thereafter
Waiting Period
  • One week for first qualifying event per 52-week period
  • No waiting period for subsequent qualifying events in same 52-week period
    regardless of type or number
Funding Mechanism Employers pay a tax of 0.62% of their payroll to the District to fund the program
Administration
  • Office of Paid Family Leave (a division of the DC Department of Employment Services)
  • No voluntary plans or private insurance permitted
Existing Employer Paid Leave Benefits
  • An employer can adopt or retain paid-leave policies that supplement or
    otherwise provide greater benefits than are required by UPL
  • But doing so does not exempt employer from paying UPL contributions or
    preclude employee from receiving UPL benefits
Job Protection

 

  • ONLY IF employee works for an employer with 20 or more employees and is
    eligible for concurrent leave under the existing DC FMLA (see below)
  • Employees of smaller employers can take paid leave but do not have job protections

 

EMPLOYERS BEWARE:  The broader D.C. FMLA law is still in effect

Unlike the state of Washington, which repealed its unpaid Family Leave Act to coincide with the effective date of Washington PFML, the D.C. UPL does not affect the District’s existing unpaid Family and Medical Leave Act.  That Act applies to employers with 20 or more employees and provides job-protected leave for the same reasons as UPL but in much greater amounts:  Up to 16 weeks each in a 24-month period for employee medical leave and family leave reasons.  Leaves will run concurrently if the leave qualifies under the two laws.  However, because the thresholds for covered employers and employee eligibility are lower under UPL, some employees may be entitled to UPL leave but not DC FMLA leave and thus be without job protection.  As always, the federal FMLA will run concurrently with either law if it applies.

For more information, check out these resources: 

Universal Paid Leave Amendment Act of 2016

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

Poster

 

 

Accommodation Delayed is Not (Necessarily) Accommodation Denied

Posted on: July 25, 2019 0

By Robb McDonald and Marti Cardi, Vice President Product Compliance

July 25, 2019

 

 “This is a case about a civil servant’s dissatisfaction with the government’s sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.”

So starts the opinion in Weatherspoon v. Price, a case decided recently by the federal court in the District of Columbia.

What Happened?

Monique Weatherspoon was (and, as far as we know, still is!) employed by the U.S. Department of Health and Human Services.  She suffers from uveitis, a sensitivity to light which makes it difficult for her to travel to her office and to read her computer screen.  Over time the Department granted a multitude of accommodations.  Try these on for size:

  • Starting in 2011 and for the next few years, the Department permitted Weatherspoon to work from home
    1-2 days per week and also to work from home as needed due to her condition.
  • In 2015, Weatherspoon’s condition deteriorated and she requested a laptop with an oversize screen. Instead,
    the Department offered to provide a docking station and large monitor for home set up.
  • Weatherspoon took medical leave in November and December 2015.
  • In early 2016, the Department advised Weatherspoon that the docking station and monitor were available
    for pickup. Weatherspoon cancelled several appointments with IT to test and pick up the equipment.
    Once she picked up the equipment, Weatherspoon indicated that she had trouble using it.
  • The Department’s Computer/Electronic Accommodations Program (CAP) suggested that a software
    program, ZoomText, might be helpful and provided Weatherspoon with a trial version. Weatherspoon
    advised the Department that the software was not helping.
  • In May 2016, Weatherspoon requested 100% telework as an accommodation. The Department denied
    the request, but did permit telework for 2 days per week, and episodic telework as necessitated by her
    condition. The Department never denied a request by Weatherspoon for episodic telecommuting.
  • After further in-person assessment, the CAP provided Weatherspoon different ZoomText software and
    a larger laptop. Weatherspoon picked up the equipment in December 2016 when she went to the office
    for the holiday party.

Apparently, this equipment and the telecommuting arrangement were successful in enabling Weatherspoon to perform her job.  Nonetheless, these efforts were not satisfactory to Weatherspoon.  She sued the Department for “failing to reasonably and effectively accommodate” her disability.

Side note.  OK, a little detail here.  Weatherspoon sued the Department under the federal Rehabilitation Act, not the ADA.  The Rehab Act is substantially similar to the ADA but applies to federal employers and employees, while the ADA applies to pretty much all other employers and employees.  The principles, the employer’s obligations, and the employee’s rights are the same.  So in general, a lesson learned in a Rehab Act case also applies to employers covered by the ADA.

The Tortoise, Not the Hare

Weatherspoon alleged that lengthy delays (she claimed 17 months) in providing accommodations were tantamount to a denial of her request.  The court acknowledged that in some cases, a long-delayed accommodation could be considered unreasonable and hence a violation of the ADA/Rehab Act but here, no single accommodation request took more than 3-4 months to resolve – and always ended with the Department providing Weatherspoon with an accommodation.  Moreover, many factors contributing to the delays were beyond the control of the Department.  For example, Weatherspoon took an extended period of medical leave during the request period, cancelled multiple meetings, and delayed in picking up the offered equipment.  The court also noted that it can take weeks or months to analyze and procure proper technology such as specialized software and computer equipment.  And, when dealing with a government entity, movement is “more tortoise-like than hare-like . . . But that’s just business as usual, not evidence of discrimination.”

The Interactive Process – Keep it Going!

As we know, it is important to engage in the interactive process when evaluating an accommodation request, and this requires “flexible give-and-take” between the employer and employee. In this case, Weatherspoon’s supervisor was in regular communication and dialogue with her.  There was also a great deal of communication among Weatherspoon, her supervisor, and 5 additional persons or entities within the Department to assess and meet her needs.  In light of this and the number of attempted and suggested accommodations, the court held that the Department participated in the interactive process in good faith and did not violate the Rehab Act due to the delays in reaching final accommodations.

Pings for Employers

  1. Engage in the interactive process with regular communication and dialogue. Don’t be responsible for
    a breakdown in the process.  According to the Court, “To determine whether the employer held up its end
    of the bargain, courts look to factors such as whether the employer obstructs or delays the interactive process
    or fails to communicate, by way of initiation or response.”  In this case, the Department kept the process
    going to conclusion with some effective accommodations.
  2. So don’t be responsible for unreasonable delays. Weatherspoon did indeed experience delays in obtaining
    effective accommodations.  One wonders whether a private employer would have received the leniency this
    court showed to the Department as a government entity!  You don’t want to be the test case!
  3. Offer alternative accommodations in appropriate circumstances. You do not have to approve an employee’s
    preferred accommodation when there is another effective accommodation that better suits your business needs.
    In this case the Department offered Weatherspoon different specialized equipment than what she requested and
    also pushed back on her request for full-time telecommuting by offering 2 days per week plus other days as
    needed. Just be sure that the alternative offered is effective to enable the employee to perform her essential
    functions.
  4. If you can’t find a reasonable, effective accommodation, a robust interactive process will still serve you well.
    If you engage in dialog with the employee and consider various options, but none enable the employee to
    perform her essential functions without undue hardship, you have fulfilled your ADA obligations.  (But don’t
    forget your duty to consider reassignment, the accommodation of last resort! See our prior blog posts on
    reassignment
    here and here.)
  5. Document the interactions meticulously. Especially in an extended situation like this one, it would be difficult
    after the fact to recreate accurately all the interactions that support your position.

MATRIX CAN HELP!  Through our ADA Advantage, Matrix offers administration and management of employee requests for accommodations.  We manage it all, from intake and medical documentation through the final accommodation decision and follow-up.  We manage and document the interactive  process so you don’t have to worry about those Pings above.  You retain control over the final decision but we help you get there effectively and in compliance with the ADA.  If you want to learn more about our ADA services, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

With this blog post we welcome a new contributor, Robert McDonald, J.D., Ph.D. Robb has been with Matrix Absence Management since 2017 and serves as Vice President of Learning & Development. In this capacity Robb is responsible for course development and instruction to all Matrix employees nationwide.