6235177 Human Resources, Department of - Notice of Proposed Rulemaking - To Amend Chapter 12, Hours of Work, Legal Holidays and Leave
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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF PROPOSED RULEMAKING
The Director of the D.C. Department of Human Resources, with the concurrence of the City Administrator, pursuant to Sections 404(a) and 1201 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code §§ 1-604.04(a) and 1-612.01 et seq. (2014 Repl.)), and Mayor’s Order 2008-92, dated June 26, 2008, proposes the following rules to amend Chapter 12 (Hours of Work, Legal Holidays, and Leave) of Title 6 (Personnel), Subtitle B (Government Personnel), of the District of Columbia Municipal Regulations (DCMR).
The purpose of the proposed rulemaking is to: (1) clarify that employees with service credits under federal retirement programs other than the Civil Service Retirement System are not eligible to receive creditable service for annual leave accrual purposes; (2) re-designate Section 1236, Emergency Annual Leave and Leave Restriction for Abuse of Emergency Annual Leave, as “Reserved;” (3) move provisions previously contained in Section 1244, Sick Leave—Advancing, to Section 1243; (4) merge the provisions previously contained in Sections 1236 and 1243, Emergency Sick Leave and Leave Restriction for Abuse of Sick Leave into Section 1244, rename Section 1244 as Unscheduled Leave and Leave Restriction, and further amend Section 1244 to provide clarifying language on the use of annual leave, sick leave, and leave without pay during personal emergencies; (5) amend Section 1279 for clarity and change the number of days a WAE employee must be continuously employed to ninety (90) days; and (6) add clarifying language to Section 1286. Section 1299, Definitions, has been amended to amend the definition for the term “Unscheduled Leave.”
The Director also provides notice of the intent to adopt these rules in not less than thirty (30) days after publication of this notice in the D.C. Register.
Chapter 12, HOURS OF WORK, LEGAL HOLIDAYS, AND LEAVE, of Title 6-B DCMR, GOVERNMENT PERSONNEL, is amended as follows:
Section 1211, TELEWORK, Subsection 1211.2, is amended to read as follows:
1211.2 Based on the needs of the organization, and to the extent possible without diminishing employee performance, each agency is authorized to establish telework for eligible employees of the agency, except as provided in Subsection 1211.12.
Section 1233, ANNUAL LEAVE—DETERMINING CREDITABLE SERVICE, is amended to read as follows:
1233.1 In determining years of creditable service for annual leave accrual, an employee shall be entitled to receive service credit for the following:
(a) All service creditable under CSRS (5 U.S.C. § 8332) for the purpose of an annuity;
(b) Except for employees as described in Subsections 1232.6 and 1232.7, all service creditable under the District retirement benefits program established pursuant to Section 2605 of the CMPA (D.C. Official Code § 1-626.05 (2012 Repl.)); and
(c) Military service for uniformed service members retired as a result of a service related disability, as provided in Subsection 1233.2.
1233.2 An employee who is a retired member of a uniformed service as defined by 5 U.S.C. § 3501 shall be entitled to credit for active military service only if his or her retirement was based on one (1) of the two (2) following types of disabilities:
(a) A disability resulting from injury or disease received in the line of duty as a direct result of armed conflict; or
(b) A disability caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by 38 U.S.C. §§ 101 and 301.
1233.3 The determination of years of service may be made on the basis of an affidavit from the employee subject to verification by the personnel authority.
1233.4 District government service prior to October 1, 1987, that is under Social Security shall be creditable for annual leave accrual purposes, and shall be purchasable for credit toward retirement under 5 U.S.C. § 8332.
1233.5 Notwithstanding any other provision of this chapter, CSRS annuitants who are employed or re-employed by the District government after February 26, 2008, shall not receive service credit for any federal or District service that was used to compute their CSRS annuity.
1233.6 Except for the service described in Subsection 1233.1, federal government service shall not be creditable service for annual leave accrual purposes.
Section 1235, ANNUAL LEAVE—GRANTING, Subsection 1235.2, is amended to read as follows:
1235.2 Annual leave shall be requested and approved no later than twenty-four (24) hours prior to the day on which the annual leave is to be used. Employees are required to obtain approval for the use of annual leave by whichever method is formally established within his or her agency. Annual leave requested and approved at least 24 hours prior to the leave period shall constitute “scheduled annual leave;” leave approved with less than 24 hours’ notice is deemed “unscheduled annual leave” for recordkeeping purposes.
Section 1236, EMERGENCY ANNUAL LEAVE AND LEAVE RESTRICTION FOR ABUSE OF EMERGENCY ANNUAL LEAVE, is repealed and replaced with:
1236 [RESERVED]
Section 1243, EMERGENCY SICK LEAVE AND LEAVE RESTRICTION FOR ABUSE OF SICK LEAVE, is repealed and replaced with:
1243 SICK LEAVE–ADVANCING
1243.1 Agency heads or their subordinate supervisor designees are authorized to advance to an employee a maximum of two hundred forty (240) hours of sick leave in cases of serious disability or ailments, except:
(a) When the agency head (or designee) has reason to believe that the employee may not be able to repay the advanced leave; or
(b) When an employee is serving a term or temporary appointment with a not-to-exceed date), an agency head may advance sick leave only up to the total sick leave the employee would earn during the remainder of the time-limited appointment.
1243.2 If the reason for an employee’s request for advanced sick leave would qualify for leave under D.C. FMLA or federal FMLA, any advanced sick leave used by the employee shall count towards his or her entitlement.
1243.3 All of the employee’s accrued and accumulated sick leave must be exhausted before an agency head or his or her designee may advance leave to the employee.
Section 1244 is renamed from “SICK LEAVE—ADVANCING” to “UNSCHEDULED LEAVE AND LEAVE RESTRICTION,” and is amended to read as follows:
1244 UNSCHEDULED LEAVE AND LEAVE RESTRICTION
1244.1 The required process for requesting leave is to submit a request at least twenty-four (24) hours prior to the day the leave is to be taken (agencies may establish policies requiring that a leave request be submitted more than twenty-four (24) hours in advance); however, from time to time, employees may need to be absent from work unexpectedly for reasons such as a personal emergency or illness. Any leave not requested at least twenty-four (24) hours in advance of the start of an employee’s scheduled tour of duty is considered unscheduled leave.
1244.2 Employees are entitled to unscheduled leave when circumstances beyond their control prevent them from reporting to work. An employee may also use unscheduled leave when authorized by the Mayor during a declared emergency as outlined in Subsection 1273.4. Except when an employee is placed on leave restriction, or when there is a uniform agency policy to the contrary, the use of unscheduled sick leave does not require supervisory approval. Notwithstanding the foregoing, a supervisor may deny the use of unscheduled leave if the supervisor has sound reason to believe that a legitimate personal emergency does not exist or the employee's presence on duty is essential to maintain minimum public services in the support or maintenance of public health, life, or property and the employee has been so notified.
1244.3 An employee shall inform his or her immediate supervisor or, if not available, another supervisor within the employee’s chain of command, of his or her need to take unscheduled leave. Except in exceptional circumstances, an employee shall notify his or her supervisor of the need to take unscheduled leave no later than two (2) hours prior to the beginning of the employee’s scheduled tour of duty or as soon as the employee becomes aware of the need to take unscheduled leave, whichever is earlier. A request for unscheduled leave received after the start of the employee’s tour of duty may be denied. Agencies may establish a written policy with a different notification period based on operational requirements.
1244.4 Agency heads shall determine, and inform their subordinate employees in writing, whether notifying a co-worker, leaving a message on the supervisor’s or an approved agency voicemail, sending an electronic mail, or submitting a leave request for unscheduled leave in the time reporting system shall be deemed as an adequate contact for employees notifying their supervisor of their need to take unscheduled leave. If no administrative order or agency policy is developed in this regard, then employees shall submit a leave request for unscheduled leave in the time reporting system.
1244.5 The use of unscheduled leave shall be reported as “unscheduled annual leave,” “unscheduled sick leave,” “unscheduled leave without pay,” “unscheduled compensatory time,” or “unscheduled exempt time off” in the applicable time reporting system based upon the reason for the absence. When appropriate, employees on an approved telework agreement should consider requesting situational telework, as outlined in Subsection 1211.8, in lieu of using unscheduled leave.
1244.6 As required by Subsection 1242.5, sick leave for pre-scheduled medical, dental, or optical examinations or treatments shall be requested in advance. In all other situations, the employee shall make requests for unscheduled sick leave pursuant to Subsection 1244.3.
1244.7 An employee’s immediate supervisor may restrict an employee’s use of unscheduled leave whenever there is substantial evidence that the employee has engaged in a pattern or practice of leave abuse, such as:
(a) Requesting unscheduled leave in order to avoid certain work shifts or work assignments;
(b) Requesting unscheduled leave when a personal emergency does not exist;
(c) Requesting unscheduled leave with such frequency that it results in the employee being unavailable immediately preceding or following the employee’s consecutive two (2) days outside of the basic workweek; or
(d) Requesting unscheduled leave with such frequency that it results in the employee being absent part of the workday or an entire workday on a consistent and regular basis.
1244.8 Whenever a supervisor determines that an employee has engaged in an activity set forth in Subsection 1244.7, the employee may be placed on leave restriction. The period of leave restriction shall be outlined in writing and may not exceed ninety (90) days.
1244.9 An employee who has been placed on leave restriction must receive permission directly from his or her supervisor or, if not available, directly from another supervisor in the chain of command, before taking unscheduled leave.
1244.10 An employee under leave restriction who takes unscheduled leave without receiving prior supervisory approval, as specified in Subsection 1244.9, shall be placed in an Absence Without Official Leave status in accordance with Section 1268; may be ordered to provide proof that he or she was seen by a health care provider; and shall be subject to administrative action as indicated in Subsection 1607.2(f) of Chapter 16 (Corrective and Adverse Actions; Enforced Leave; and Grievances).
1244.11 Upon completion of a prescribed period of leave restriction without incident, the employee shall be removed from leave restriction and may return to requesting unscheduled leave as indicated in Subsection 1244.4.
Section 1246, FLSA COMPENSATORY TIME—GRANTING, Subsection 1246.1, is amended to read as follows:
1246.1 An employee may be authorized to use, at the employee’s request, compensatory time in lieu of using annual leave, sick leave, leave without pay, or unscheduled leave.
Section 1248, EXEMPT TIME OFF, Subsection 1248.2, is amended to read as follows:
1248.2 An employee may be authorized to use, at the employee’s request, exempt time off in lieu of using annual leave, sick leave, leave without pay, or unscheduled leave.
Section 1262, MILITARY LEAVE, Subsection 1262.6, is amended to read as follows:
1262.6 An employee serving in a permanent appointment, temporary appointment pending establishment of a register (TAPER), term appointment, or indefinite appointment, who is a member of the D.C. National Guard, shall be entitled to military leave without loss in pay or time for participation in parades or encampments that the D.C. National Guard, or any portion thereof, is ordered to perform by the Commanding General under Title 49 of the D.C. Official Code. However, leave will not be provided for time spent at weekly drills or meetings and does not extend to voluntary participation in such operations. When leave is taken pursuant to this subsection, the employee shall be entitled to pay differential between their regular rate of pay and that received from the National Guard.
Section 1273, DECLARED EMERGENCIES—LATE ARRIVAL, UNSCHEDULED LEAVE, OR UNSCHEDULED TELEWORK, Subsection 1273.4, is amended to read as follows:
1273.4 Whenever the Mayor determines that an unscheduled leave policy is in effect due to a declared emergency in accordance with Subsection 1273.1(b), an employee, other than an essential or emergency employee subject to the provisions of Section 1271, shall be permitted to utilize annual leave, compensatory time, exempt time off, or leave without pay, for all or part of that day, up to a maximum of eight (8) hours or the number of hours worked under an alternative or compressed work schedule, if applicable, without obtaining advance approval or providing detailed justification. The use of unscheduled sick leave must be approved in accordance with Section 1244.
Section 1279, PAID LEAVE PURSUANT TO THE ACCRUED SICK AND SAFE LEAVE ACT OF 2008 (D.C. LAW 17-152), AS AMENDED, is amended to read as follows:
1279 ACCRUED SICK AND SAFE LEAVE
1279.1 The Accrued Sick and Safe Leave Act of 2008 (“Act”), effective May 13, 2008 (D.C. Law 17-152; D.C. Official Code §§ 32-131.01, et seq. (2012 Repl. & 2015 Supp.)), provides paid leave to covered employees for illness and for absences associated with domestic violence and sexual abuse.
1279.2 The provisions of this section shall only apply to “covered employees.” For the purposes of this section, a “covered employee” is a temporary employee who has been continuously employed under a “When Actually Employed” (WAE) (also known as intermittent) appointment for at least ninety (90) days. The District government has paid leave policies, as specified in this chapter, which provide leave options at higher accrual rates than those provided in this section. Employees in non-WAE positions are covered by those leave options, rather than by this section.
1279.3 An employee’s paid leave under this section shall accrue in accordance with the District government’s established biweekly pay period, and at the beginning of his or her employment. Covered employees are provided with not less than one (1) hour of paid leave for every thirty seven (37) hours worked, not to exceed seven (7) days a year.
1279.4 Covered employees shall accrue paid leave on a prorated basis at a rate of (1) hour of paid leave per biweekly pay period. An employee may begin to access the accrued paid leave after ninety (90) days of service with the District government.
1279.5 Paid leave accrued under this section may be used by a covered employee for any of the following:
(a) An absence resulting from a physical or mental illness, injury, or medical condition of the employee;
(b) An absence resulting from obtaining a professional medical diagnosis or care, or preventive medical care, for the employee;
(c) An absence for the purpose of caring for a family member who has any of the conditions or needs for diagnosis or care described in paragraphs (a) and (b) of this subsection; or
(d) An absence if the employee or the employee’s family member is a victim of stalking, domestic violence, or sexual abuse; provided, the employee seeking leave under paragraph (d) of this subsection, may:
(1) Seek medical attention for the employee or the employee’s family member to treat or recover from physical or psychological injury or disability caused by an incident of stalking, domestic violence, or sexual abuse;
(2) Obtain services from a victim services organization;
(3) Obtain psychological or other counseling services;
(4) Temporarily or permanently relocate;
(5) Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from an incident of stalking, domestic violence, or sexual abuse; or
(6) Take other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee’s family member or to enhance the safety of those who associate or work with the employee.
1279.6 Unused paid leave accrued by a covered employee who separates from employment and is rehired within one (1) year of separation shall be reinstated. The employee shall be entitled to use the accrued paid leave and accrue additional paid leave immediately upon re-employment provided that the employee had previously been eligible to use paid leave.
1279.7 Unused paid leave accrued by an employee subject to this section who separates from employment for more than one (1) year, shall not be reinstated, and the employee shall be considered as being on a new appointment for purposes of leave accrual and access as provided in Subsections 1279.3 and 1279.4.
1279.8 The use of paid leave by a covered employee in accordance with this section shall not subject the employee to discipline, termination, demotion, suspension or other corrective or adverse action.
1279.9 If the Mayor (or his or her designee) determines that a District agency under the Mayor’s personnel authority has violated any provisions of this section, the Mayor (or his or her designee) shall order affirmative remedies in accordance with provisions contained in the Act.
1279.10 The District government shall retain records documenting the hours worked and the paid leave taken by an employee subject to the provisions of this section for a period of three (3) years. The District government shall allow access to the retained records by the Mayor and the D.C. Auditor, with appropriate notice.
1279.11 For the purposes of this section, the following terms shall have the meanings ascribed:
Domestic violence – an intrafamily offense as defined in D.C. Official Code § 16-1001(8).
Employee – any individual employed by the District government.
Family member – (a) a spouse, including the person identified by an employee as his or her domestic partner, as defined in Section 2(3) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(3) (2012 Repl.)); (b) the parents of a spouse; (c) children (including foster children and grandchildren); (d) the spouses of children; (e) parents; (f) brothers and sisters; (g) the spouses of brothers and sisters; (h) a child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility; or (i) a person with whom the employee shares or has shared, for not less than the preceding twelve (12) months, a mutual residence and with whom the employee maintains a committed relationship, as defined in Section 2(1) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(1)).
Paid leave – accrued increments of compensated leave provided by the District for use by an employee.
Sexual abuse – any offense described in the Anti-Sexual Abuse Act of 1994, effective May 23, 1995 (D.C. Law 10-257; D.C. Official Code §§ 22-3001 et seq. (2012 Repl. & 2015 Supp.)).
Section 1286, GOVERNMENT FAMILY LEAVE PROGRAM – PROTECTIONS AND LIMITATIONS, Subsection 1286.8, is amended to read as follows:
1286.8 An employee on paid family leave must provide care to the child or family member for whom the leave was approved on each day for which paid family leave is used. An employee shall not receive paid family leave when the qualifying child or family member is entrusted to the care of another individual (such as an aunt, uncle, sibling, etc.), other than a medical professional, for four (4) or more hours during the employee’s typical tour of duty.
Section 1299, DEFINITIONS, Subsection 1299.1, is amended to add and revise definitions for the following terms:
Personal emergency – an urgent circumstance, outside of the employee’s control, which prevents an employee from reporting to work. A personal emergency may include, but is not limited to, a personal illness, illness of an immediate family member, and a household emergency. In this context, personal emergencies are temporary in nature. Should an employee require extended time away from work, he or she should consult with his or her agency to receive information on the potential eligibility for federal FMLA or D.C. FMLA.
Telework – an arrangement in which an employee regularly, or during a declared emergency, performs officially assigned duties at his or her home, and which is approved, in advance and in writing, by the employee’s immediate supervisor and agency head.
Unscheduled leave – any leave approved (granted) by an employee’s immediate supervisor when the request for such leave occurred less than twenty-four (24) hours before the leave period is scheduled to begin.
Comments on these proposed regulations should be submitted, in writing, within thirty (30) days of the date of the publication of this notice to Mr. Justin Zimmerman, Associate Director, Policy and Compliance Administration, D.C. Department of Human Resources, 441 4th Street, N.W., Suite 340 North, Washington, D.C. 20001, or via email at justin.zimmerman@dc.gov. Additional copies of these proposed rules are available from the above address.
