5161290 Human Resources, Department of - Notice of Final Rulemaking - To amend Chapter 12, Hours of Work, Legal Holidays and Leave
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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF FINAL RULEMAKING
The Director of the D.C. Department of Human Resources, with the concurrence of the City Administrator, pursuant to Mayor’s Order 2008-92, dated June 26, 2008, and in accordance with 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) §§ 1-612.01 et seq.), hereby gives notice of the intention to adopt the following rules amending Chapter 12 (Hours of Work, Legal Holidays and Leave) of Title 6, Subtitle B (Government Personnel), of the District of Columbia Municipal Regulations (DCMR).
The rules amend the provisions contained in Section 1279 on the Paid Leave Pursuant to the Accrued Sick and Safe Leave Act of 2008, effective May 13, 2008 (D.C. Law 17-152; 55 DCR 3452 (April 4, 2008)) to reflect changes in District law, including those made by the Earned Sick and Safe Leave Amendment Act of 2013, effective February 22, 2013 (D.C. Law 20-89; D.C. Official Code § 32-131.02 (2012 Repl.)), which, among other things, allows an individual who is not covered by another, more generous leave system to begin accruing paid leave at the start of his or her employment, and provides for access to such paid leave after 90 days of service with an employer. In addition, the rules expand on the provisions contained in Section 1211 (Telecommuting); Section 1270 (Declared Emergencies—In General); Section 1272 (Declared Emergencies—Late Arrival, Unscheduled Leave Policy); and Section 1273 (Declared Emergencies—Shut-Down).The rules also amend the definition of the term “When Actually Employed (WAE),” in Section 1299 (Definitions), and add definitions of the terms “Unscheduled Leave” and “Unscheduled telecommuting.”
No comments were received to the Notice of Proposed Rulemaking published on June 13, 2014 at 61 DCR 005989. However, a non-substantive change was made to Subsection 1279.6(b) and a typographical error was corrected in Subsection 1299.1, in the definition of the term “When Actually Employed.” The rules were adopted as final on August 11, 2014 and will become effective upon publication in the D.C. Register.
Chapter 12, HOURS OF WORK, LEGAL HOLIDAYS AND LEAVE, of Subtitle B of Title 6, GOVERNMENT PERSONNEL, of the DCMR is amended as follows:
Section 1211, TELECOMMUTING, is amended to read as follows:
1211 TELECOMMUTING
1211.1 Telecommuting is an arrangement in which an employee regularly, or during a declared emergency (if directed to do so), performs officially assigned duties at home or another work site geographically convenient to the employee’s residence.
1211.2 Based on the needs of the organization, and to the maximum extent possible without diminishing employee performance, each agency is authorized to establish telecommuting for eligible employees of the agency. Telecommuting must be offered on an equal basis to all employees of the agency, or to all employees of a subordinate component of the agency.
1211.3 Telecommuting shall be part of a scheduled tour of duty, is subject to a written agreement and only permitted after an employee has completed any telecommuting training required by the District of Columbia Department of Human Resources.
1211.4 Requests to engage in telecommuting must be signed by the employee, be approved in writing and in advance by the employee’s supervisor and the agency head (or his or her designee), and must certify that the position, during the period during which an employee will telecommute, satisfies conditions set forth in Subsections 1211.6 of this section, and that the telecommuting arrangement complies with Subsection 1211.7 of this section.
1211.5 Unless otherwise approved by the agency head and personnel authority, telecommuting by an employee shall be limited to not more than two (2) days per workweek.
1211.6 Positions best suited for telecommuting are those that:
(a) Have job tasks that are quantifiable, primarily project or case-work oriented, telephone intensive, or computer-oriented; or have work activities that can be accommodated working away from the current work location with equal efficiency as if being performed at the official work site;
(b) Do not require daily unscheduled face-to-face contact with other employees, supervisors, or the public in the current work location; and
(c) Allow meetings to be scheduled without inconveniencing or impairing the performance of co-workers.
1211.7 Telecommuting shall not be combined with a flexible work schedule under Section 1209 of this chapter, or a compressed work schedule under Section 1210 of this chapter.
1211.8 Authorization to engage in telecommuting may be rescinded by the agency head (or designee) whenever the agency head (or designee) determines that the employee has failed to accomplish the work as prescribed, or for other reasons.
1211.9 Whenever an agency (or designee) determines that the approval for telecommuting is to be rescinded pursuant to Subsection 1211.8, the employee shall be given, where practicable, at least two weeks’ notice prior to the rescission.
1211.10 Upon termination of the telecommuting agreement, the employee shall return to the tour of duty that existed prior to receiving approval to engage in telecommuting, unless the tour of duty has been changed by the employee’s supervisor in accordance with applicable rules.
1211.11 Failure of an employee to return to his or her regular tour of duty upon the rescission of the authorization to engage in telecommuting, shall result in the forfeiture of the employee’s opportunity to engage in telecommuting in the future and, where appropriate, will result in disciplinary action.
1211.12 By October 1 of each year, subordinate agencies shall submit a report to DCHR. The report, which covers an agency’s program activities for the prior fiscal year, shall include:
(a) The name, grade, step, and position title of each employee approved to telecommute;
(b) The total number of employees approved to telecommute;
(c) The total number of employees working under an approved telecommuting work agreement;
(d) The total number of days each employee is authorized to telework per workweek;
(e) The number of employees that completed the required telecommuting training;
(f) The reason(s) for the termination of any telecommuting agreement; and
(g) The reason(s) for the exclusion of any employee or group of employees from participating in the program during the period in question.
1211.13 The D.C. Department of Human Resources shall conduct periodic audits of subordinate agency telecommuting programs for the purpose of ensuring compliance with D.C. personnel regulations and HR procedures. The audit also covers PeopleSoft actions that the agency inputs relative to telecommuting.
Section 1270, DECLARED EMERGENCIES – IN GENERAL, is amended to read as follows:
1270 DECLARED EMERGENCIES—IN GENERAL
1270.1 During a declared emergency, the following situations may occur:
(a) In response to circumstances that develop while employees are at work, employees may be dismissed early as provided in Section 1271 of this chapter;
(b) In response to circumstances that develop prior to normal duty hours, employees may be authorized to take unscheduled leave, unscheduled telecommuting, or arrive late, as provided in Section 1272 of this chapter; and
(c) In response to circumstances that arise prior to normal duty hours, there may be a shut-down of District government operations as provided in Section 1273 of this chapter.
1270.2 The Mayor may declare an emergency whenever he or she deems it to be appropriate and in the public interest.
1270.3 For the purposes of this section as well as Sections 1271 through 1273 of this chapter, certain District government employees shall be designated as “essential” or “emergency” employees.
1270.4 Critical District government operations cannot be suspended or interrupted during emergency situations such as those described in Subsection 1270.1 of this section. Agencies shall identify each agency position with duties that are vital to the continuity of medical facilities, public safety, emergency services, or other crucial operations; and shall designate employees occupying such positions as “essential employees.” Employees designated “essential” shall be required to be at work regardless of the emergency situation declared.
1270.5 The position description or job specification for a position or groups (families) of positions with duties as described in Subsection 1270.4 of this section shall state that the incumbent of the position or positions shall be considered an essential employee required to be at work when an emergency is declared and regardless of the emergency situation declared.
1270.6 An employee designated as an “essential employee” under the provisions of Subsection 1270.4 of this section shall be identified by position title or other appropriate means and shall be notified in writing of his or her designation as an essential employee and the specific requirements placed upon the employee in emergency situations. The written notification shall occur within thirty (30) days of the agency determination for current employees, or at the time of hire or appointment to the essential position, as applicable. The required thirty-day (30-day) notification period may be suspended during a period of a declared emergency.
1270.7 An agency head may designate employees as “emergency employees,” based on the nature and circumstances of a particular declared emergency. Employees may be designated as emergency employees on a case-by-case basis and, when so designated, will be called in to work, required to stay at work, or required to telecommute, if approved to do so, during the particular emergency situation.
1270.8 An employee designated as an “emergency employee” under the provisions of Subsection 1270.7 of this section shall be informed of the designation within thirty (30) days of such designation and in writing, or by any other means the agency deems appropriate (i.e., over the telephone or by electronic mail if the employee is not at work when the emergency is declared). A written notification shall follow a verbal notification. The required thirty-day (30-day) notification period may be suspended during a period of a declared emergency.
1270.9 Upon determination by an agency head that an employee’s position designation as an emergency employee is no longer applicable, the agency head shall notify the employee, in writing, within thirty (30) days of such determination.
1270.10 Essential and emergency employees who are required to work during a declared emergency when non-essential and non-emergency employees are on administrative leave shall be entitled to compensation as provided in Chapter 11 of these regulations.
Section 1272, DECLARED EMERGENCIES – LATE ARRIVAL OR UNSCHEDULED LEAVE, is amended to read as follows:
1272 DECLARED EMERGENCIES—LATE ARRIVAL, UNSCHEDULED LEAVE, OR UNSCHEDULED TELECOMMUTING POLICY
1272.1 The Mayor may, whenever he or she deems it to be appropriate and in the public interest, authorize one or all of the following:
(a) A late arrival policy authorizing up to two (2) hours of excused absence;
(b) An unscheduled leave policy; or
(c) An unscheduled telecommuting policy.
1272.2 Whenever the Mayor authorizes one of the policies set forth in Subsection 1272.1 of this section, he or she shall make every reasonable effort to ensure that such decision is disseminated by the media as widely and as promptly as possible.
1272.3 Each employee shall be responsible for reporting for duty and for making every possible effort to do so, even upon the occurrence of conditions beyond the control of an employee, such as inclement or hazardous weather or transportation disruption.
1272.4 Whenever the Mayor determines that an unscheduled leave policy is in effect, an employee, other than an essential or emergency employee subject to the provisions of Section 1270 of this chapter, 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 hours worked under a compressed work schedule, if applicable, without obtaining advance approval or providing detailed justification. The use of sick leave must be approved in accordance with Section 1243 of this chapter.
1272.5 Whenever the Mayor determines that a late arrival policy is in effect in accordance with Subsection 1272.1(a) of this section, a non-essential and non-emergency employee shall be granted up to two hours of excused absence. The late arrival period shall not extend beyond 10:00 a.m.
1272.6 Whenever the Mayor determines that an unscheduled telecommuting policy is in effect in accordance with Subsection 1272.1(c) of this section, an emergency employee previously approved in writing to telecommute by his or her supervisor and agency head, may telecommute if directed to do so.
1272.7 An employee who does not request leave during a period when an unscheduled leave policy is in effect, and refuses to consent to any type of leave upon return to duty, shall be charged with absence without leave (AWOL).
Section 1273, DECLARED EMERGENCIES – SHUT-DOWN, is amended to read as follows:
1273 DECLARED EMERGENCIES—SHUT-DOWN
1273.1 The Mayor may, whenever he or she deems it to be appropriate and in the public interest, authorize the shut-down of all non-essential District government operations prior to the commencement of normal duty hours.
1273.2 Whenever the Mayor authorizes a shut-down of all non-essential operations, he or she shall make every reasonable effort to ensure that such decision shall be disseminated by the media as widely and as promptly as possible.
1273.3 Agency heads and other personnel authorities may authorize the shut-down of one or more of their facilities due to breakdown of heating or air conditioning equipment or other similar situations, and shall ensure that all affected employees are promptly notified.
1273.4 Except as provided in Subsections 1273.5 and 1273.6 of this section, employees shall be given administrative leave for the entire day of shut-down.
1273.5 Each essential employee subject to the provisions of Section 1270 of this chapter shall still be required to report for duty even upon the occurrence of conditions beyond the control of an employee, such as inclement or hazardous weather or transportation disruption.
1273.6 Each emergency employee subject to the provisions of Section 1270 of this chapter shall be required to report for duty or telecommute, if so directed, even upon the occurrence of conditions beyond the control of an employee, such as inclement or hazardous weather or transportation disruption.
1279 PAID LEAVE PURSUANT TO THE ACCRUED SICK AND SAFE LEAVE ACT OF 2008 (D.C. LAW 17-152), AS AMENDED
1279.1 As specified in this section, certain District government employees described in Subsection 1279.6 of this section (“covered employees”) are entitled to leave as provided for in the Accrued Sick and Safe Leave Act of 2008 (“2008 Act”), effective May 13, 2008 (D.C. Law 17-152; D.C. Official Code §§ 32-131.01 et seq. (2010 Repl.)), as amended by the Earned Sick and Safe Leave Amendment Act of 2013 (“2013 Act”), effective February 22, 2014 (D.C. Law 20-89; D.C. Official Code §§ 32-131.02 et seq.) (the 2008 Act, as amended by the 2013 Act is referred to in this section as the “Act”).
1279.2 The purpose of the Act is to provide paid leave to covered employees for illness and for absences associated with domestic violence and sexual abuse.
1279.3 In accordance with this section, 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 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 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, that the absence is directly related to medical, social or legal services pertaining to the stalking, domestic violence, or sexual abuse, an employee seeking leave under paragraph (d) of this subsection, may do so to:
(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 the stalking, domestic violence, or sexual abuse;
(2) Obtain services from a victim services organization;
(3) Obtain psychological or other counseling services; temporarily or permanently relocate;
(4) Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the stalking, domestic violence, or sexual abuse; or
(5) 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.
1279.5 Pursuant to D.C. Official Code § 32-131.05, and notwithstanding the provisions of Subsection 1279.2 of this section, an employer with a paid leave policy providing paid leave options shall not be required to modify such policy if it offers employees the option to accrue and use leave under terms and conditions that are at least equivalent to the paid leave prescribed in this section.
1279.6 Applicability only to “Intermittent” appointments.
(a) Because the District government currently has paid leave policies, as specified in this chapter, that provide leave options to eligible District government employees at higher accrual rates than those provided in this section, the provisions of this section shall only apply to “covered employees,” that is, temporary employees serving under “When Actually Employed” (WAE) (also known as Intermittent) appointments who have been continuously employed under a WAE appointment for at least one (1) year.
(b) Eligible WAE employees shall accrue paid leave on a prorated basis, and shall accrue one (1) hour of paid leave per biweekly pay period.
1279.7 Pursuant to the Act, 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.
1279.8 An employee may begin to access the accrued paid leave after ninety (90) days of service with the District government.
1279.9 The unused paid leave previously accrued by an employee subject to this section 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.
1279.10 The unused paid leave previously 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 1279.7 and 1279.8.
1279.11 The use of paid leave by an eligible employee in accordance with this section shall not be taken as an absence that may result in discipline, termination, demotion, suspension or other adverse action.
1279.12 If the Mayor (or his or her designee) determines that an employer has violated any provisions of the section, the Mayor (or his or her designee) shall order affirmative remedies in accordance with provisions contained in the Act.
1279.13 The employer, as defined in this section, 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 employer shall allow access to the retained records by the Mayor and the Office of the D.C. Auditor, with appropriate notice.
1279.15 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(5) and (8).
Employee – any individual employed by an employer, but shall not include: (a) any individual who, without payment and without expectation of any gain, directly or indirectly, volunteers to engage in the activities of an educational, charitable, religious, or non-profit organization; (b) any lay member elected or appointed to office within the discipline of any religious organization and engaged in religious functions; (c) any individual employed as a casual babysitter, in or about the residence of the employer; (d) an independent contractor; (e) a student; or (f) health care workers who choose to participate in a premium pay program.
Employer – 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; and (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(3)).
Paid leave – accrued increments of compensated leave provided by an employer for use by an employee.
Premium pay program – a plan offered by an employer pursuant to which an employee may elect to receive extra pay in lieu of benefits.
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. (2001 ed. & 2011 Supp.)).
Section 1299, DEFINITIONS, is amended to add definitions for the terms “Unscheduled Leave” and “Unscheduled Telecommuting,” and to amend the definition of the term “When Actually Employed (WAE) Appointment,” as follows:
1299 DEFINITIONS
1299.1 When used in this chapter, the following terms have the meaning ascribed:
Unscheduled leave –annual leave, compensatory time, exempt time off, or leave without pay during a declared emergency taken by an employee without obtaining advance approval or providing detailed justification. Unscheduled leave is distinct from emergency annual leave, as provided in Section 1236 of this chapter.
Unscheduled telecommuting – telecommuting by an emergency employee previously designated and approved, in writing, to telecommute when an emergency is in effect on a day or during a period during which the employee was not previously scheduled to telework.
When Actually Employed (WAE) Appointment – an appointment under which an employee serves on an intermittent basis, that is, nonfull-time without a prescheduled regular tour of duty. A person serving on a WAE appointment provides occasional or irregular services on programs or projects requiring intermittent support. This type of appointment is also referred to as an “intermittent appointment.”
