-
D.C. OFFICE OF HUMAN RIGHTS
NOTICE OF FINAL RULEMAKING
The Director of the Office of Human Rights, pursuant to section 301(c) of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1403.01(c)), and Mayor’s Order 2009-45, dated March 31, 2009, hereby gives notice of the adoption of the following amendments to Title 4, Chapter 16 of the District of Columbia Municipal Regulations. The purpose of this amendment is to provide guidelines for implementing the District of Columbia Family and Medical Leave Act of 1990 (Act), effective October 3, 1990 (D.C. Law 8-181; D.C. Official Code §§ 32-501, et seq.).
Proposed rulemaking was published in the D.C. Register at 57 DCR 3929 on May 7, 2010. The Office received comments from private entities, which were considered, and some were incorporated. Minor alterations were also made to clarify the intent, meaning, or application of the proposed rules. A second proposed rulemaking was published on October 22, 2010, in the D.C. Register for a shortened notice and comment period at 57 DCR 9965.
No public comments were received, and no changes have been made since publication of that proposed rulemaking. These final rules will become effective upon publication of this notice in the D.C. Register.
Chapter 16 of Title 4 DCMR, “District of Columbia Family and Medical Leave Act” is deleted in its entirety and amended to read as follows:
CHAPTER 16 DISTRICT OF COLUMBIA FAMILY AND MEDICAL LEAVE ACT
Section
1600 Authority and Purpose
1601 Applicability—Covered Employers—In General
1602 Applicability—Covered Employers—Joint Employment
1603 Applicability—Eligible Employees
1604 Entitlements—Generally
1605 Entitlements—Medical Leave
1606 Entitlements—Family Leave
1607 Cumulative Nature of Family and Medical Leave
1608 Interaction with the Fair Labor Standards Act
1609 Employment and Benefits Protection
1610 Complaint Procedure
1611 The Role of the Office of Human Rights—District Government Only
1612 Notice to be Provided by OHR to Employers and Employees
1613 Notice to be Provided by Employers
1614 Reasonable Notice by Employee to be Provided to Employer
1615 Claims for Leave—Medical Certification
1616 Calculation of Leave
1617 Administration and Employer Recordkeeping
1618 Exception to Eligibility—School Employees
1619 Exception to Eligibility—Uniformed Employees
1620 Interaction with Federal Law
1621 Prohibited Acts
1622 Investigation
1623 Hearings
1624 Findings and Recommendations of the Hearing Examiner
1625 Final Decision of the Director After the Hearing
1699 Definitions
1600 AUTHORITY AND PURPOSE
1600.1 The provisions of this chapter are promulgated to implement the District of Columbia Family and Medical Leave Act of 1990, effective October 3, 1990 (D.C. Law 8-181; D.C. Official Code §§ 32-501 et seq.) (Act or DCFMLA).
1600.2 The Director of the Office of Human Rights (OHR), under Mayor’s Order 2009-45, dated March 31, 2009, is delegated the authority to issue rules to implement the Act.1600.3 The purpose of these regulations is to provide guidance on, and procedures and standards for, the implementation of the DCFMLA and to notify the District government as an employer, other covered employers within the District, and eligible employees of their rights and responsibilities under the Act.
1600.4 An employer cannot create a rule or policy which diminishes the rights of employees or the obligations of employers.1601 APPLICABILITY—COVERED EMPLOYERS — IN GENERAL
1601.1 This chapter shall apply to all employers that employ twenty (20) or more persons in the District of Columbia on or after April 1, 1991; provided that this chapter shall not apply to the United States government.
1601.2 A private employer shall be covered if it maintains twenty (20) or more employees on the payroll during twenty (20) or more calendar workweeks (whether consecutive or not) in either the current or the preceding calendar year.
1601.3 Once a private employer meets the threshold of twenty (20) employees
during twenty (20) workweeks as specified in § 1601.2, the employer shall remain covered until it no longer employs twenty (20) employees for twenty (20) workweeks (whether consecutive or not) in the current or preceding year.
1601.4 For example, if an employer employed twenty (20) employees during twenty (20) workweeks in the calendar year as of September 1, 2008, then subsequently dropped below twenty (20) employees before the end of calendar year 2008 and continued to employ fewer than twenty (20) employees during that year, the employer would continue to be covered throughout calendar year 2009 because it met the coverage criteria for twenty (20) workweeks of the preceding calendar year 2008.
1601.5 If the employer employs at least twenty (20) employees in the District, its eligible employees shall include those employees who work within the District. The definition of employee, and the standard to determine whether an employee is employed in the District, is set forth in section 1603.6.
1601.6 The District of Columbia government shall be considered as a single employer under the DCFMLA, and the DCFMLA is applicable to every District government agency, office, and other subdivision, without regard to its individual size.
1602 APPLICABILITY—COVERED EMPLOYERS — JOINT EMPLOYMENT
1602.1 Where two (2) or more businesses exercise some control over the work or working conditions of the employee, the businesses may be considered joint employers under the DCFMLA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities.
1602.2 Where the employee performs work which simultaneously benefits two (2) or more employers, or works for two (2) or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:
(a) Where there is an arrangement between employers to share an
employee’s services or to interchange employees;
(b) Where one (1) employer acts directly or indirectly in the interest of
the other employer in relation to the employee; or
(c) Where the employers are not completely disassociated with respect
to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one (1) employer controls, is controlled by, or is under the common control of the other employer (for example, a temporary agency employer).
Joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.
1602.3 A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship viewed in the totality.
1602.4 In joint employment relationships, only the primary employer is responsible for giving the required notices to its employees, providing DCFMLA leave, and maintenance of health benefits.
1602.5 Factors considered in determining which is the primary employer include authority or responsibility to hire and fire, assign, or place the employee, make payroll, and provide employment benefits. For employees of temporary placement agencies, for example, the placement agency most commonly would be the primary employer.
1602.6 Employees jointly employed by two (2) employers shall be counted by both employers, whether or not the employee is maintained on only one (1) of the employers’ payrolls, in determining coverage and employee eligibility.
1602.7 Job restoration is the primary responsibility of the primary employer.
1602.8 The secondary employer is responsible for accepting the employee returning from DCFMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the primary employer, and the primary employer chooses to place the employee with the secondary employer.
1602.9 The secondary employer is also subject to § 1621 with respect to its joint employees, whether or not the secondary employer is covered by DCFMLA.
1603 APPLICABILITY – ELIGIBLE EMPLOYEES
1603.1 An eligible employee is an individual who works within the District, as described in subsection 1603.5, and has been employed by the same employer for one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and has worked at least one thousand (1,000) hours during the twelve (12)-month period immediately preceding the request for family or medical leave. Hours paid for holiday, sick, and vacation time consistent with the employer’s regular policies shall be included in the calculation of the one thousand (1,000) hour threshold.
1603.2 The one (1) year of employment without a break in service need not be immediately preceding the DCFMLA request, but if the break in service between the request for FMLA leave and the last date of service is greater than seven (7) years, the time need not be included in determining eligibility.
1603.3 Except as provided in § 1603.1, whether an employee has worked the minimum one thousand (1,000) hours of service shall be determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. (See 29 CFR part 785.)
1603.4 The primary factor in determining whether the employee has worked the one thousand (1,000) hours shall be the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA principles may be used.
1603.5 An employee is an individual who has been employed by the same employer for one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and has worked at least one thousand (1,000) hours during the twelve (12)-month period immediately preceding the request for family or medical leave. Hours paid for holiday, sick, and vacation time consistent with the employer’s regular policies are included in the calculation of the one thousand (1, 000) hour threshold. An employee shall be deemed to work within the District if the person spends more than fifty percent (50%) of his or her work-time working for the employer in the District, if the person is employed by the employer in more than one (1) location, or the employee is based in the District of Columbia and regularly spends a substantial part of his or her time working for the employer in the District of Columbia and does not spend more than fifty percent (50%) of his or her work-time working for the employer in any particular state.
1603.6 Pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 et seq. (2006) (USERRA), an employee returning from fulfilling his or her National Guard or Reserve military obligation shall be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the one thousand (1,000) hours of service. Accordingly, a person reemployed following military service shall be credited with the hours that would have been worked for the employer added to any hours actually worked during the previous twelve (12)-month period in calculating whether the one thousand (1,000) hour requirement is met.
1603.7 In order to determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule may be used for calculations.
1603.8 If an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked (for example, bona fide executive, administrative, and professional employees, as defined in 29 CFR part 541), the employer has the burden of showing that the employee has not worked the requisite hours.
1603.9 The determination of whether an employee has worked for the employer for at least one thousand (1,000) hours in the past twelve (12) months and has been employed by the employer for a total of at least twelve (12) months must be made as of the date the FMLA leave is to start. An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”
1603.10 In determining DCFMLA eligibility for a District of Columbia government employee, the one thousand (1,000) hour requirement need not have been met with work in one (1) agency; rather, the employee may have worked at least one thousand (1,000) hours in total for the District government at large, in any agency or combination of agencies.
1603.11 Whether twenty (20) employees are employed by an employer in the District shall be determined when the employee gives notice of the need for leave. Once an employee is determined eligible in response to a notice of the need for leave, the employee’s eligibility shall not be affected by any subsequent change in the number of employees employed by that employer, even if the leave is taken on an intermittent or reduced leave schedule, if the leave is taken based on the same notice of the need for leave. An employer may not end employee leave that has already started if its number of employees drops below twenty (20).
1603.12 If an employer undergoes a business change, such as a merger, acquisition, or name change, the employer’s successor-in-interest shall be considered the same as the original employer for purposes of determining whether an employee has worked for the employer for the requisite number of months and hours to be eligible for DCFMLA leave.
1604 ENTITLEMENTS—GENERALLY
1604.1 In any twenty-four (24)-month employment period, an eligible employee of a covered employer may take job-protected, unpaid leave, or paid leave if the employee has earned or accrued the paid leave, for sixteen (16) workweeks for medical leave purposes and sixteen (16) workweeks for family leave purposes. The medical leave and family leave taken by the employee must meet the standards set forth in §§ 1605 and 1606, respectively, and any other applicable provisions in this chapter.
1604.2 Nothing in this chapter shall prohibit an employer and an employee with a serious health condition from mutually agreeing to alternative employment for the employee throughout the duration of the serious health condition of the employee. A period of alternative employment shall not be considered use of medical leave under the DCFMLA and shall not cause a reduction in the amount of family or medical leave to which the employee is entitled under this chapter.
1605 ENTITLEMENTS— MEDICAL LEAVE
1605.1 An employee who becomes unable to perform the functions of his or her position because of a serious health condition shall be entitled to medical leave for the period during which the employee is unable to perform the functions, except that the medical leave shall not exceed sixteen (16) workweeks during any twenty-four (24)-month period. The medical leave may be taken intermittently or on a reduced schedule basis for planned and/or unanticipated medical treatment or recovery when medically necessary.
1605.2 For purposes of this chapter, “serious health condition” means a physical or mental illness, injury, or impairment that involves inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment or supervision at home by a health care provider or other competent individual. For the purposes of this definition:
(a) The term “treatment” includes, but is not limited to, examinations
to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment such as the taking of over-the-counter medications, bed rest, or similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute continuing treatment for purposes of DCFMLA leave.
(b) The term “inpatient care” is the care of a patient in a hospital, hospice, or residential medical care facility for the duration of one (1) overnight or longer, or any subsequent treatment in connection with such inpatient care.
(c) The term “incapacity” means inability to work, attend school, or
perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition.
(d) Conditions for which cosmetic treatments are administered, such
as most treatments for acne or plastic surgery, are not “serious
health conditions” within this definition unless they render the
recipient of such treatment incapacitated or unless complications develop.
1605.3 A serious health condition involving continuing treatment by a health care provider includes any one (1) or more of the following:
(a) A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:
(1) Treatment two (2) or more times within thirty (30) days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (for example, physical therapist) under orders of, or on referral by, a health care provider. Whether additional treatment visits or a regimen of continuing treatment is necessary within the thirty (30) day period shall be determined by the health care provider;
(2) The term “extenuating circumstances” in subparagraph (a)(1) of this paragraph means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the thirty (30)-day period, but the health care provider does not have any available appointments during that time period. The requirement for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within ten (10) days after the first day of incapacity; or
(3) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. The requirement for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit shall take place within ten (10) days after the first day of incapacity.
(b) Any period of incapacity due to pregnancy, or for prenatal care. See also 29 CFR § 825.120;
(c) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider or by a nurse under direct supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (such as asthma, diabetes, and epilepsy);
(d) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease; or
(e) Any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity of more than three (3) consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (such as chemotherapy and radiation), severe arthritis (physical therapy), or kidney disease (dialysis).
1605.4 Absences attributable to incapacity under § 1605.3(b) or (c) shall qualify for DCFMLA leave even if the employee does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three (3) consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. As a further example, an employee who is pregnant may be unable to report to work because of severe morning sickness.
1605.5 Nothing in this section shall require an employer to provide paid medical leave. Should an employee wish to use paid medical, sick, vacation, personal, or compensatory leave which the employee has accrued, the employee may use such paid leave, provided that it otherwise meets the employer’s requirements for the taking of such paid leave. Any paid medical, sick, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for medical leave under this chapter shall count against the sixteen (16) workweeks of allowable medical leave provided by the DCFMLA.
1605.6 If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions (commonly referred to as a leave bank), and the conditions for the employee’s use of the leave bank have been met, the employee may use the paid leave as medical leave, and the leave shall count against the sixteen (16) workweeks of medical leave provided by the DCFMLA.1606 ENTITLEMENTS – FAMILY LEAVE1606.1 An employee shall be entitled to a total of sixteen (16) workweeks of family leaveduring any twenty-four (24)-month period for:
(a) The birth of a child of the employee;(b) The placement of a child with the employee for adoption or foster
care;(c) The placement of a child with the employee, if the employee permanently
assumes and discharges parental responsibility for the child; or(d) The care of a family member of the employee who has a serious
health condition.1606.2 The entitlement to family leave shall expire twelve (12) months after the birth of the child or placement of the child with the employee.1606.3 In the case of care for a family member who has a serious health condition, the family leave may be taken intermittently or on a reduced schedule basis when medically necessary.1606.4 Upon agreement between the employer and the employee, family leave for the birth, adoption, or foster care or other placement of a child may be taken on a reduced leave schedule, during which the sixteen (16) workweeks of family leave may be taken over a period not to exceed twenty-four (24) consecutive workweeks.1606.5 With respect to joint employers, both employers must agree to the reduced schedule in order for the employee to be eligible for the reduced leave schedule.1606.6 Nothing in this section shall require an employer to provide paid medical leave.1606.7 Should an employee wish to use paid medical, sick, vacation, personal, or compensatory leave which the employee has accrued, the employee may use such paid leave, provided that it otherwise meets the employer’s requirements for the taking of such paid leave. Any paid medical, sick, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for family leave under this chapter shall count against the sixteen (16) workweeks of allowable family leave provided pursuant to the DCFMLA.
1606.8 If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions (commonly referred to as a leave bank), and the conditions for the employee’s use of the leave bank have been met, the employee may use the paid leave as family leave and the leave shall count against the sixteen (16) workweeks of family leave provided in this chapter.1606.9 If two (2) family members are employees of the same employer:(a) The employer may limit to sixteen (16) workweeks during a twenty-four (24)-month period the aggregate number of family leave workweeks to which the family members are entitled; and(b) The employer may limit to four (4) workweeks during a twenty- four (24)-month period the aggregate number of family leave workweeks to which the family members are entitled to take simultaneously.1606.10 For the purposes of § 1606.9, the term “same employer” includes an office,division, subdivision, agency, or other organizational section of anemployer in which both employees have the same or interrelated dutiesand the absence of both employees would unduly disrupt the conduct of the employer's business.1606.11 The limitation on the aggregate number of family leave workweeks towhich the family members are entitled shall apply only if the familymembers seek to take leave for the same underlying reason, for example,care for the same family member or due to the birth of the same child.1606.12 Information that an employee gives to an employer regarding a family relationship, pursuant to which the employee seeks to take family leave under this section, shall be used only to make a decision in regard to the provisions of this chapter. An employer shall keep any information regarding the family relationship confidential.1607 CUMULATIVE NATURE OF FAMILY AND MEDICAL LEAVE1607.1 The entitlement to sixteen (16) weeks of family leave during any twenty- four (24)-month period shall be separate from and in addition to the entitlement to sixteen (16) weeks of medical leave during any twenty-four (24)-month period. This means that an eligible employee may take both up to sixteen (16) weeks of medical leave and up to sixteen (16) weeks of family leave during the same twenty-four (24)-month period, notwithstanding 29 CFR § 825.701(a)(1).1608 INTERACTION WITH THE FAIR LABOR STANDARDS ACT1608.1 The provision by an employer of unpaid DCFMLA leave to an employee who is exempt from minimum wage and overtime requirements of FLSA based on his or her status as a salaried executive, administrative, professional, or computer employee (see 29 CFR part 541) shall not cause the employee to lose the FLSA exemption.1608.2 If an employer provides unpaid DCFMLA leave to an employee who is considered an exempt employee under 29 CFR part 541, the employer may deduct pay from the employee’s salary for any hours taken as DCFMLA leave within a workweek without affecting the exempt status of the employee.
1608.3 When an exempt employee takes unpaid DCFMLA leave, an employer may deduct a proportionate part of the full salary for the time for which DCFMLA leave is taken. For example, if an exempt employee who normally works forty (40) hours per week uses four (4) hours of DCFMLA leave, the employer could deduct ten percent (10%) of the employee’s normal salary that week.1608.4 When calculating the amount of pay allowed to be deducted under§ 1608.2, the employer may use the hourly or daily equivalent of the employee’s full weekly salary or any other amount proportional to the time actually missed by the employee.1608.5 For an employee paid in accordance with the fluctuating workweek method of payment for overtime (see 29 CFR § 778.114), the employer, during the period in which intermittent or reduced schedule DCFMLA leave is taken, may compensate an employee on an hourly basis and pay only for the hours the employee works, including time and one-half the employee’s regular rate for overtime hours.1608.6 The change to payment on an hourly basis shall include the entire period during which the employee is taking intermittent leave, including weeks in which no leave is taken.1608.7 The hourly rate shall be determined by dividing the employee’s weekly salary by the employee’s normal or average schedule of hours worked during weeks in which DCFMLA leave is not being taken.1608.8 If an employer chooses to follow this exception from the fluctuating workweek method of payment, the employer must do so uniformly with respect to all employees paid on a fluctuating workweek basis who take DCFMLA leave.1608.9 If an employer does not elect to convert the employee’s compensation to hourly pay, no deduction may be taken for DCFMLA leave absences.1608.10 Once the need for intermittent or reduced scheduled leave is over, the employee may be restored to payment on a fluctuating workweek basis.1609 EMPLOYMENT AND BENEFITS PROTECTION
1609.1 An employee who takes family or medical leave under this chapter shall not lose any employment benefit or seniority accrued before the date on which the family or medical leave commenced.
1609.2 During any period in which an employee takes family or medical leave,the employer shall maintain coverage for the employee under any group health plan, as defined in § 5000(b) of the Internal Revenue Code of 1986 (approved October 21, 1986 (100 Stat. 2012; 26 U.S.C. 5000(b)). For the purposes of this subsection, the term “group health plan” shall also include a group health plan provided by the District of Columbia government.
1609.3 The employer shall maintain coverage for the duration of the family or medical leave at the same level and under the same conditions that coverage would have been provided if the employee had not taken the family or medical leave.
1609.4 An employer may require the employee to continue to make anycontribution to a group health plan that the employee would have made if the employee had not taken family or medical leave. If an employee is unable or refuses to make the contribution to the group health plan, the employee shall forfeit the health plan benefit until the employee is restored to employment pursuant to § 1609.6 and resumes payment to the plan.
1609.5 When the employee who agreed to alternative employment is able to
perform the functions of the employee’s original position, the employee shall be restored to the employee’s original position.
1609.6 Except as provided in § 1609.8 and applicable provisions of a negotiated collective bargaining agreement, upon return from family or medical leave:
(a) The employee shall be restored by the employer to the position ofemployment held by the employee when the family or medical leave commenced; or
(b) If the position held by the employee when the family or medical
leave commenced is no longer available, the employee shall be restored to a position of employment equivalent to the position held by the employee when the family or medical leave commenced. The position shall include equivalent employment benefits, pay, seniority, and other terms and conditions of employment.
1609.7 Except as provided in § 1609.2, nothing in this section shall entitle an employee restored by an employer to a position of employment to:
(a) The accrual of any seniority or employment benefit during anyperiod of family or medical leave; or
(b) Any rights, employment benefit, or position of employment other
than any right, employment benefit, or position of employment to which the employee would have been entitled had the employee not taken the family or medical leave.
1609.8 Except as provided in § 1609.6, an employer in the District may deny restoration of employment to a salaried employee if the employee is among the five (5) highest paid employees of an employer of fewer than fifty (50) persons or among the highest paid ten percent (10%) of employees of an employer of fifty (50) or more persons and the following conditions are met:
(a) The employer demonstrates that denial of restoration of employment is necessary to prevent substantial and grievous economic injury to the employer’s operations and the injury is not directly related to the leave that the employee took pursuant to this chapter; and
(b) The employer notifies the employee of the intent to deny restoration of employment and the basis for the decision at the time it provides the eligibility letter to the employee following the employee’s request for leave as described in § 1613.
1609.9 Section 1609.8 shall not apply if:
(a) The employer is under a contract to provide work or services and the absence of the employee prohibits them from completing the contract in accordance with the terms of the contract;
(b) Failure to complete the contract will cause substantial and grievous economic injury to the employer; and
(c) After the employer made reasonable attempts, the employer failed to find a temporary replacement for the employee.
1610 COMPLAINT PROCEDURE1610.1 Any person or organization, whether or not an aggrieved party, may file with OHR a complaint of a violation of the provisions of the DCFMLA. The complaint shall state the name and address of the person alleged to have committed the violation, hereinafter called the respondent, and shall set forth the substance thereof, and such other information as may be required by OHR.1610.2 The Director on his or her own initiative may investigate individual instances and patterns of conduct prohibited by the provisions of this chapter and may initiate complaints in connection with such individual instances or patterns of conduct.1610.3 A complaint under this chapter shall be filed with OHR within one (1) year after the occurrence of the unlawful practice, or the discovery of the unlawful practice. The filing of a timely complaint with OHR shall toll the deadline by which an employee may file a civil action as specified in section 11(b) of the DCFMLA (D.C. Official Code § 32-510(b)) during all times that the employee has a complaint pending with OHR.1610.4 Complaints filed with OHR under the provisions of this chapter may be voluntarily withdrawn at the request of the complainant at any time prior to the completion of OHR’s investigation and findings as specified in D.C. Official Code § 2-1403.05. The circumstances accompanying a withdrawal may be investigated by OHR.
1610.5 All complaints shall be mediated before OHR commences a full investigation. During the mediation, the parties shall discuss the issues of the complaint in an effort to reach an agreement that satisfies the interests of all concerned parties. OHR shall grant the parties up to forty-five (45) days within which to mediate a complaint. If an agreement is reached during the mediation process, the terms of the agreement shall control resolution of the complaint. If an agreement is not reached, OHR shall proceed with an investigation of the complaint.
1610.6 With the exception of a private cause of action in a competent court of jurisdiction, the enforcement procedure contained in this chapter is the only administrative procedure that may be utilized to resolve an alleged violation of the DCFMLA.1611 THE ROLE OF THE OFFICE OF HUMAN RIGHTS-DISTRICT
GOVERNMENT ONLY1611.1 OHR shall periodically examine DCFMLA use by employees of District agencies by assessing the following factors:
(a) Whether the agencies have appointed an FMLA Coordinator;
(b) How many DCFMLA requests were made during the previous
fiscal year;
(c) How many DCFMLA requests were granted during the previous fiscal year;
(d) How many DCFMLA requests were denied during the previous fiscal year and the reason given for each denial;
(e) How long each employee was out during his or her DCFMLA leave; and
(f) Whether each request was for intermittent leave or for an extended period of time.
1611.2 After an initial compliance review in FY 2010, OHR shall determine each agency’s compliance with the DCFMLA on a quarterly basis. Beginning with the first quarter in FY 2011, a quarterly assessment of the factors contained in § 1611.1 shall be conducted by each agency’s director or his or her designee, and a report thereof shall be sent to OHR. OHR shall make an end of the fiscal year assessment of the quarterly reports and submit the results to the City Administrator.
1611.3 With respect to District of Columbia government, each agency shall be responsible for its own compliance with DCFMLA. The Department of Human Resources may play a consultative role and may issue administrative issuances, but it shall not be responsible for DCFMLA compliance of other agencies.
1612 NOTICE TO BE PROVIDED BY OHR TO EMPLOYERS AND EMPLOYEES
1612.1 OHR shall provide to employers and employees information regarding their rights and obligations under the DCFMLA.
1613 NOTICE TO BE PROVIDED BY EMPLOYERS
1613.1 Each employer and each District of Columbia government agency, through its FMLA Coordinator or designee, shall provide written and verbal notice to employers of their DCFMLA rights and responsibilities and shall also answer questions from employees concerning their rights and responsibilities under the DCFMLA.1613.2 An employer shall make DCFMLA information available to employees by posting it and including it in its employee handbook or manual. Posting includes displaying a hard copy in a conspicuous place frequented by employees or an electronic copy on the employer’s website. If an employer does not maintain an employee handbook or manual, it shall distribute DCFMLA information to new employees in another form (such as through a handout or electronic (e-mail) distribution.1613.3 When an employee requests DCFMLA leave, or when an employer acquires knowledge that an employee’s leave may be for a DCFMLA-qualifying reason, the employer shall notify the employee of his or her eligibility under the Act in accordance with § 1613.4.1613.4 Within five (5) days after an employee’s request for leave under the DCFMLA, an employer shall provide written notice to the employee in the form of an eligibility letter. The eligibility letter shall notify the employee of the following:(a) Whether the employee is an “eligible employee” for the purposes of the DCFMLA, as described in § 1603.1;
(b) If the employer determines that the employee is not an “eligible employee” for the purposes of the DCFMLA, as described in § 1602.1, the reasons for the employee’s ineligibility;
(c) The specific expectations and obligations of the employee under the DCFMLA and, if applicable, federal FMLA (29 U.S.C. §§ 2601 et seq.);
(d) The employee’s rights under the DCFMLA and, if applicable, federal FMLA;
(e) The number of hours of leave which are available to the employee under the DCFMLA and, if applicable, federal FMLA; and
(f) If applicable, a notice that the employee must submit a certification as referenced in § 1615, if such certification is required by the employer.
1613.5 As described in § 1615, an employer may require that an employee submit a medical certification to the employer’s FMLA Coordinator or designee within fifteen (15) days after the issuance of the eligibility letter, if the employee seeks to take medical leave. In addition, an employer may require the employee to submit a medical certification for leave related to a family member’s serious health condition.
1613.6 After an employer receives a medical certification from an employee, as provided in § 1615, the employer, through its FMLA Coordinator or designee, shall be responsible for designating leave as DCFMLA or federal FMLA-qualifying, and for giving notice in writing of the designation to the employee within five (5) business days after receiving the medical certification, unless there are extenuating circumstances.
1613.7 If family or medical leave taken by an employee qualifies as DCFMLA and/or federal FMLA leave, the employer may designate the leave as DCFMLA and/or federal FMLA leave, regardless of whether the employee requested to have the leave designated.1613.8 Notices provided to employees with limited English proficiency must comply with the Language Access Act of 2004 (D.C. Official Code §§ 2-1931 et seq.).1613.9 Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee’s DCFMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.
1614 REASONABLE NOTICE BY EMPLOYEE TO BE PROVIDED TO EMPLOYER
1614.1 If an employee has, or reasonably should have, at least thirty (30) days notice of the need for family or medical leave, the employee shall notify the employer of his or her intention to take family or medical leave at least thirty (30) days before the employee wishes the leave to begin. When the need for family or medical leave is known at least thirty (30) days in advance and an employee fails to give timely notice to the employer with no reasonable excuse, the employer may delay FMLA coverage until thirty (30) days after the date the employee provides notice.
1614.2 If an employee could not reasonably have foreseen the need for family or medical leave at least thirty (30) days in advance, the employee shall notify the employer of the need for leave as soon as practicable prior to the date on which the employee wishes the leave to begin.
1614.3 If the approximate timing of the need for leave is not foreseeable, the employee shall request family or medical leave from the employer no later than five (5) business days after the absence begins, or as soon as practicable thereafter. Notice may be given by the employee’s spokesperson (for example, the employee’s spouse, an adult family member, a health care provider, or another responsible party) if the employee is unable to do so personally.1614.4 Notwithstanding § 1614.3, if the necessity for leave is foreseeable based on an expected birth or placement of a child with an employee, the employee shall provide the employer with at least thirty (30) days advance notice of the expected birth or placement of a child with the employee. If the exact date of birth or placement of a child is unknown, the employee may fulfill this advance notice requirement by communicating to the employer with sufficient notice the expected approximate birth or placement date.1614.5 Notwithstanding § 1614.3, if the necessity for family or medical leave under this section is foreseeable based on planned medical treatment or supervision, an employee shall:(a) Provide the employer with at least thirty (30) days advance notice of the medical treatment or supervision; and(b) Make a reasonable effort to schedule the medical treatment orsupervision, subject to the approval of the health care provider, in a manner that does not unduly disrupt the operations of the employer.1614.6 For purposes of the District of Columbia government, each employee must provide notice to their FMLA Coordinator or designee. An employee’s contact with the District of Columbia Department of Human Resources, if that agency is not the employer agency, shall not constitute the required notice under this section.1614.7 When an employee or an employee’s spokesperson gives notice of the employee’s need for leave under this chapter, the employee or employee’s spokesperson does not need to expressly assert the employee’s rights under this chapter, nor does the employee or employee’s spokesperson need to mention the DCFMLA or FMLA in order to meet the employee’s obligation to provide notice. Rather, an employee giving notice of the need for DCFMLA leave need only explain the reason for the needed leave so as to allow the employer to determine whether the leave qualifies under this chapter. If an employer is unable to tell based on the notice given by an employee whether the leave requested by the employee might qualify as DCFMLA leave, it shall request additional information from the employee so as to make this determination.1615 CLAIMS FOR LEAVE—MEDICAL CERTIFICATION1615.1 An employer may require that an employee support a claim for family leave under the DCFMLA for the care of a family member who has a serious health condition by submitting a medical certification issued by the family member’s health care provider.
1615.2 An employer may require that a claim for medical leave under the DCFMLA for an eligible employee who has a serious health condition be supported by a medical certification issued by the employee’s health care provider. If the employee’s employer requests such a certification, the employee shall submit the requested certification to the employer within fifteen (15) days, unless it is not practicable for the employee to do so under the particular circumstances, despite the employee’s diligent, good-faith efforts. For example, if the employee has diligently submitted the certification request to the employee’s health care provider in a timely manner, but the employee’s health care provider has not returned the completed certification before the fifteen (15) day deadline, the employee may need additional time to communicate with the health care provider regarding the need to return the completed certification or to see another health care provider who can complete the certification.
1615.3 The medical certification shall state the following:
(a) The date on which the serious health condition began, or is expected to begin;
(b) The probable duration of the condition;
(c) The appropriate medical facts known to the health care
provider that would entitle the eligible employee to leave under the DCFMLA; and
(d) For purposes of medical leave, a statement that the employee
is unable to perform the essential functions of the employee’s position; or, for purposes of family leave, an estimate of the amount of time that the employee is needed to care for the family member.
1615.4 The certification shall not include any genetic information or family medical history of the employee or the employee’s family members. An employer shall not require, and an employee is under no obligation to provide, genetic information or family medical history of the employee or the employee’s family members.
1615.5 If the employer believes that the medical certification returned by an employee does not provide the information required by § 1615.3, the employer shall notify the employee, in writing, of the missing or deficient information within five (5) days of receipt of the medical certification. The employee shall then have ten (10) days to correct the certification by providing the missing or deficient information to the employer, unless it is not practicable for the employee to do so, despite the employee’s diligent good-faith efforts.
1615.6 If the employer has reason to doubt the validity of the certification provided under this section, the employer may require that the employee obtain, at the expense of the employer, the opinion of a second health care provider approved by the employer, in regard to any information required to be certified.
1615.7 If the second opinion provided under this subsection differs from the original certification provided for in this section, the employee may obtain the opinion of a third health care provider mutually agreed upon by the employer and the employee, in regard to any information required to be certified under this section. The employer shall pay the cost of the opinion of the third health care provider. The third health care provider approved or mutually agreed upon by the employer and employee may not be a health care provider retained on a regular basis by the employer or employee, or a health care provider who otherwise bears such a close relationship to the employer or employee that there would be the appearance that the certification is biased.
1615.8 The opinion of the third health care provider shall be final and binding on the employer and employee.
1615.9 The employer may require that the employee obtain subsequent
recertifications if:
(a) The employee requests an extension of leave or a different type or
frequency of leave, beyond what the employee requested in the
employee’s initial certification or request for DCFMLA leave;
(b) The employer obtains new information which causes it to doubt the
validity of the employee’s stated reason for the leave or the
continuing validity of the certification; or
(c) More than six (6) months has passed since the employee previously submitted a certification for the leave.
1615.10 Certification information requested under this section shall be used
only to make a decision in regard to the provisions of this chapter. An employer shall keep any medical information obtained from a certification request confidential.
1615.11 For family leave under the DCFMLA for the care of a family member who has a serious health condition, in addition to requiring submission of a medical certification, an employer may require that an employee support a claim for family leave by submitting a signed affidavit stating that the employee is, in fact, the person who will be taking care of the specific family member with the serious health condition.
1616 CALCULATION OF LEAVE
1616.1 A private employer may choose any of the following methods for determining the twenty-four (24)-month period in which the sixteen (16) weeks of family leave and sixteen (16) workweeks of medical leave under DCFMLA may be taken by an employee:
(a) The calendar year;
(b) Any fixed twelve (12)-month leave year, such as a fiscal year, a
year required by state law, or a year starting on an employee’s anniversary date;(c) The twenty-four (24)-month period measured forward from the date any employee’s first DCFMLA leave begins; or
(d) The twenty-four (24)-month period measured backward from the date an employee uses (or would use, pursuant to a request) DCFMLA leave.
1616.2 Employers may choose any of the alternatives described in § 1616.1 forthe leave entitlements, provided that the alternative chosen is appliedconsistently and uniformly to all employees. Employers shall informemployees of the method it has chosen to calculate DCFMLA leaveentitlements either as part of its general notice to employees, as describedin § 1613, or in its eligibility notices to employees.1616.3 For District government purposes, the FMLA Coordinator shall utilize the “twenty-four (24)-month period forward” alternative described in § 1616.1 (c).1616.4 For intermittent or reduced schedule leave, leave shall be counted based on the proportion of a normal workweek that the employee misses for DCFMLA leave purposes. For example, if an employee, who normally works five (5) days a week, takes two (2) days of intermittent DCFMLA leave, that leave shall be counted as two fifths (2/5) of one (1) workweek. If an employee who normally works forty (40) hours per week decreases to working thirty (30) hours per week due to reduced schedule DCFMLA leave, that leave shall be counted as one forth (1/4) of one (1) workweek for each week that such reduced schedule leave is maintained.1616.5 The employer may designate leave on an hourly basis. Six hundred forty (640) hours shall equal 16 workweeks for a forty (40)-hour per week schedule.1617 ADMINISTRATION AND EMPLOYER RECORDKEEPING
1617.1 All District government agencies shall designate an FMLA Coordinator for the agency. The FMLA Coordinator may be the individual designated as the Human Resource Specialist for the agency.
1617.2 All private employers are encouraged to designate an FMLA Coordinator or a specific person to administer DCFMLA and the federal FMLA.
1617.3 An FMLA Coordinator shall be knowledgeable of the requirements in order to ensure proper handling and processing of all FMLA requests.
1617.4 The FMLA Coordinator of a District of Columbia government agency, or the FMLA designee of a private employer, shall have the following responsibilities:
(a) Notifying the employees of their rights under the applicable law through posters, the employee handbook or manual, and trainings on the subject;
(b) Providing information to an employee regarding his or her rights and obligations if an employee requests DCFMLA leave or if the employee gives notice of a DCFMLA-qualifying event;
(c) Issuing an eligibility letter within five (5) days after request for the leave; and
(d) Issuing a designation letter within five (5) days after the submission of the employee’s medical certification.
1617.5 Each employer subject to the Act, through its FMLA Coordinator or other person coordinating FMLA compliance and/or responding to a DCFMLA request on behalf of a private employer, shall maintain records which document on an annual basis the following:
(a) The total number of employees who have taken leave pursuant to
the DCFMLA;
(b) The annual additional cost to the employer for the expenses incurred to replace an employee during the time the employee is on leave granted pursuant to the DCFMLA;
(c) The annual additional cost incurred to pay for the employee’s health insurance during the time the employee is on leave granted pursuant to the DCFMLA;
(d) The length of leave taken by an employee pursuant to the DCFMLA;
(e) The reason(s) an employee took leave pursuant to the DCFMLA;
(f) The salary, hourly wage, or grade level of the employee who has taken leave pursuant to the DCFMLA;
(g) The employee’s request and supporting documents for leave requested pursuant to the DCFMLA; and
(h) The employer’s disposition of the employee’s request for leave pursuant to the DCFMLA.
1617.6 The employer shall preserve the confidentiality of information relating to the circumstances and the particular reasons for an employee’s request for leave pursuant to the DCFMLA.
1617.7 Only individuals with a demonstrated need to know an employee’s DCFMLA status or request can be provided such information. Even if the information is provided, information contained on the DCFMLA questionnaire or medical certification shall not be disclosed or shared with a supervisor, manager, or other agency official unless it is determined that the supervisor, manager, or other agency official has demonstrated the need to know particular information contained on the DCFMLA questionnaire or medical certification for work-related reasons.
1617.8 Given the confidential nature of DCFMLA requests, DCFMLA forms and supporting medical certifications shall be maintained in a segregated and locked file, and the documents shall be stored separate and apart from the agency’s human resources files.
1617.9 Employer records relating to leave requests made pursuant to the DCFMLA shall be available for inspection by a representative of OHR during an employer’s regular business hours at the employer’s place of business in the District of Columbia as required by section 9(a) of the DCFMLA (D.C. Official Code § 32-508(a)).
1618 EXCEPTION TO ELIGIBILITY — SCHOOL EMPLOYEES
1618.1 If the conditions of eligibility in § 1604 are met, a local educational agency (“educational agency”) or private elementary or secondary school (“school”) may require an employee who is employed principally in an instructional capacity to elect to:
(a) Take family or medical leave for periods not to exceed the exact duration of inpatient care or continuing treatment by a medical provider; or
(b) Transfer temporarily to an available alternative position offered bythe educational agency or school for which the employee is qualified, which has equivalent pay and benefits, and better accommodates the recurring periods of leave than the employee’s regular employment position.
1618.2 This section shall apply if the employee described in § 1618.1:
(a) Elects to take family leave or medical leave that is foreseeable based on planned medical treatment or supervision;(b) Would be on leave for greater than twenty percent (20%) of the total number of working days in the period during which leave would extend; and
(c) Complies with sections 3(g) or 4(c) of the DCFMLA (D.C. Official Code § 32-502(g) or § 32-503(c)).
1618.3 If an employee of an educational agency or school who is employedprincipally in an instructional capacity begins family or medical leave more than five (5) weeks before the end of the academic term, the educational agency or school may require the employee to continue to take leave until the end of the term if:
(a) The leave is at least three (3) weeks in duration; and
(b) The return to employment would occur during the three (3) week period before the end of the academic term.1618.4 If an employee of an educational agency or school who is employed principally in an instructional capacity begins medical or family leave under § 1605 or § 1606 during the period that commences from more than three (3) weeks and up to and including five (5) weeks before the end of the academic term, the educational agency or school may require the employee to continue to take leave until the end of the term if:
(a) The leave is greater than two (2) weeks in duration; and
(b) The return to employment would occur during the two (2) week period before the end of the academic term.
1618.5 If an employee of an educational agency or school who is employed principally in an instructional capacity begins leave under § 1605 or § 1606 during the period that commences three (3) weeks or less before the end of the academic term and the duration of the leave is greater than five (5) working days, the educational agency or school may require the employee to continue to take leave until the end of the term.
1618.6 For purposes of a restoration of employment determination under section 6(d)(2) of the DCFMLA (D.C. Official Code § 32-505(d)(2)), in the case of an educational agency or school, the determination shall be made on the basis of established educational agency or school policies, practices, and collective bargaining agreements.
1619 EXCEPTION TO ELIGIBILTY — UNIFORMED EMPLOYEES1619.1 A uniformed member of the Metropolitan Police Department (MPD) or Fire and Emergency Medical Services Department (FEMS) is eligible for family and medical leave to the same extent as any other District government employee. However, rights provided under DCFMLA may be suspended temporarily if the employee is required by rules, regulations, or orders of MPD or FEMS, or by the provisions of a collective bargaining agreement, to be on duty.
1620 INTERACTION WITH FEDERAL LAW1620.1 Both DCFMLA and federal FMLA apply to employers who have at least fifty (50) employees within the District of Columbia provided an exception does not apply.1620.2 For leave which qualifies under both DCFMLA and federal FMLA, the leave shall count against an employee’s entitlement for both laws and shall be counted or applied concurrently under both laws.1620.3 Nothing in the DCFMLA shall modify or affect any federal or District law
prohibiting discrimination on the basis of race, color, religion, national
origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation, including the District of Columbia Human Rights Act (D.C. Official Code §§ 2-1401.01 et seq.) (DCHRA) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000(e) et. seq.).
1620.4 The DCFMLA is not intended to modify or affect the Rehabilitation Act of 1973 (29 U.S.C. §§ 701 et seq.), the Americans with Disabilities Act of 1990 (42 U.S.C.A. §§ 12101 to 12213) (ADA), or the disability provisions of the DCHRA or the regulations issued under those Acts.
1620.5 The leave provisions of the DCFMLA are wholly distinct from the reasonable accommodation obligations of employers covered under the ADA and the DCHRA. The purpose of the DCFMLA and federal FMLA is to make leave available to eligible employees and employers within its coverage, and not to limit already existing rights and protections. An employer shall therefore provide leave under whichever statutory provision provides the greater rights to employees.1620.6 When an employer violates both the DCFMLA or federal FMLA and a discrimination law, an employee may recover under either or both statutes, if not otherwise prohibited by law. Double relief, however, shall not be awarded for the same loss. When remedies coincide, a claimant may utilize whichever avenue of relief is desired, if not otherwise restricted by law.1620.7 If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her DCFMLA and federal FMLA rights. The ADA’s “disability” and DCFMLA and federal FMLA’s “serious health condition” are different concepts, and must be analyzed separately. DCFMLA entitles eligible employees to sixteen (16) weeks of medical leave in any twenty-four (24)-month period due to their own serious health condition, whereas the ADA allows an indeterminate amount of medical leave, barring undue hardship, as a reasonable accommodation.1620.8 The DCFMLA and federal FMLA require employers to maintain employees’ group health plan coverage during DCFMLA and FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period. However, ADA does not require maintenance of health insurance unless other employees receive health insurance during leave under the same circumstances. When evaluating a situation where both the DCFMLA or federal FMLA and the ADA apply to an individual, the law that provides the greater right or benefit to the individual shall be applied. (See 29 CFR § 825.702 for specific examples of the interaction of the federal FMLA with the ADA.)1620.9 Under Title VII of the Civil Rights Act of 1964 and the DCHRA, an employer shall provide the same benefits for women who are pregnant as the employer provides to other employees with short-term disabilities. Because Title VII does not require employees to be employed for a certain period of time to be protected, an employee employed for less than twelve (12) months by the employer (and, therefore, not an “eligible” employee under DCFMLA) may not be denied maternity leave if the employer normally provides short-term disability benefits or the ability to take similar periods of medical leave to employees with the same tenure who are experiencing other short-term disabilities.1620.10 Under the Uniformed Services Employment and Reemployment RightsAct of 1994 (38 U.S.C. §§ 4301 et seq.) (USERRA), veterans are entitled to receive all rights and benefits of employment that they would have obtained if they had been continuously employed. Therefore, under USERRA, a returning service member would be eligible for DCFMLA or federal FMLA leave if the months and hours that he or she would have worked for the civilian employer during the period of military service, combined with the months employed and the hours actually worked, meet the DCFMLA or federal FMLA eligibility thresholds.1621 PROHIBITED ACTS
1621.1 It shall be unlawful for any person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided by this chapter. Such unlawful interference shall include discriminating in any manner against any person because the person engages or attempts to engage in any practice authorized by this chapter, including but not limited to requesting, inquiring about, or taking a period of family or medical leave. An employer shall not use the fact that an employee has requested, inquired about, or taken a period of family or medical leave under this chapter as a negative factor in employment actions, such as hiring, promotions, terminations, or disciplinary actions. An employer also shall not interfere with an employee’s ability to take leave under this chapter by, for example, transferring the employee to another worksite or reducing the employee’s hours so as to render the employee ineligible for such leave.
1621.2 It shall be unlawful for an employer to discharge or discriminate in any manner against any person because the person:
(a) Opposes any practice made unlawful by this chapter; or
(b) Participates in any procedure related to this chapter by doing any of the following:
(1) Filing or attempting to file a charge;
(2) Instituting or attempting to institute a proceeding;
(3) Facilitating the institution of a proceeding; or
(4) Giving any information or testimony in connection with an inquiry or proceeding related to this chapter.
1622 INVESTIGATION
1622.1 An aggrieved person (a “complainant”) shall file a written complaint with OHR alleging a violation of the DCFMLA within one (1) year after the occurrence or the discovery of the action or occurrence that the person alleges to be a violation.
1622.2 OHR shall serve a copy of the complaint filed pursuant to § 1622.1 on the employer who is alleged to have violated the DCFMLA (the “respondent”). OHR shall serve the copy of the complaint by certified mail within five (5) business days after the date the complaint is filed.
1622.3 The respondent shall file a response with OHR within fifteen (15) business days after the respondent receives the complaint.
1622.4 OHR shall investigate the complaint and, where necessary, conduct a hearing to decide if a violation of the DCFMLA occurred.
1622.5 OHR may accept statements of evidence with respect to the allegations made in the complaint and the response of the employer. OHR shall use such means as it considers suitable to conduct an investigation, including, but not limited to, written or verbal inquiry, field visits, fact-finding conferences, or other methods or a combination of methods.
1622.6 OHR shall complete its investigation within ninety (90) days after it commences the investigation or as soon as practicable thereafter.
1622.7 OHR shall issue a written determination as to whether probable cause exists to believe that a violation of the DCFMLA occurred. All determinations shall be supported by substantial evidence.
1622.8 The complaint shall be considered dismissed if no probable cause is found. The complainant may seek whatever judicial review may be available pursuant to section 10(c) of the DCFMLA (D.C. Official Code § 32-509(c)).
1622.9 If OHR determines that probable cause exists that a violation of the DCFMLA has occurred, it shall serve on the parties a notice indicating this determination, together with a Notice of Hearing setting a hearing date on the alleged violation.
1622.10 OHR shall schedule the hearing to be held within thirty (30) days after it serves the Notice of Hearing or as soon as practicable thereafter.
1623 HEARINGS
1623.1 Hearings shall be conducted in accordance with the Subchapter I of the Administrative Procedure Act (D.C. Official Code §§ 2-501 et seq.) and shall be conducted by hearing examiners employed by, or providing pro bono assistance, to OHR.
1623.2 Discovery may be obtained through any of the following methods; provided, that all requests for discovery shall be filed with the hearing examiner and served on the adverse party no later than fifteen (15) calendar days prior to the hearing:
(a) Deposition upon oral examination or written questions;
(b) Written interrogatories;
(c) Request for production of documents, objects, or permission to enter upon premises for inspection;
(d) Physical or mental examination by a qualified practitioner; or
(e) Requests for admissions.
1623.3 If a party fails to answer a request for discovery, the requesting party may move for an order from the hearing examiner compelling discovery by filing a motion to compel discovery. The party shall also file the motion on the adverse party.
1623.4 An evasive or incomplete answer to a request for discovery shall be considered a failure to answer.
1623.5 Should the party resisting discovery find that the discovery request is unduly burdensome, it may file a motion to quash with the hearing examiner. In its opposition to the motion, the requesting party shall show a substantial need for the requested material and its inability to obtain the material by alternate means.
1623.6 The party resisting discovery may file a response with the hearing examiner and serve the adverse party with the response within five (5) calendar days after the original request for an order.
1623.7 The hearing examiner may issue an order compelling the discovery, limiting its scope, issuing a protective order, or granting any other relief as the case and the interests of justice demand.
1623.8 Any party may request that the hearing examiner issue a subpoena compelling the appearance and testimony of a witness or the production of documents. The application for any subpoena shall state, with particularity, the testimony or evidence being sought and the time and place for production. The adverse party may challenge the issuance of a subpoena by filing a motion to quash with the hearing examiner and serving the motion to quash on the adverse party within five (5) calendar days after the service of the subpoena on the party challenging the subpoena.
1623.9 The hearing examiner shall have the same powers and remedies available in ruling on challenges to subpoenas as in ruling on challenges to discovery.
1623.10 A party that fails to obey an order of the hearing examiner with respect to discovery or a subpoena shall be subject to those sanctions or remedies which exist for similar failures to obey orders in civil cases in the Superior Court of the District of Columbia.
1623.11 Pre-hearing statements, if any, shall be filed by the parties at least ten (10) calendar days prior to the scheduled hearing date and served on the opposing party.
1623.12 Hearings shall be conducted in an impartial manner. The hearing examiner may ask questions of witnesses, request the submission of additional documents or other evidence, may issue subpoenas for witnesses who refuse to attend, and may otherwise act to ensure both the protection of the substantive rights of the parties and the presentation of all relevant issues necessary for consideration and decision.
1623.13 The party alleging violation of the DCFMLA bears the burden of coming forward with evidence to establish a prima facie case that the DCFMLA was violated. Once a prima facie case is established, the respondent employer shall bear the burden of producing evidence to the contrary. The complainant shall bear the burden of proof that the violations of the DCFMLA occurred; provided, that the employer shall bear the burden of proof that it should receive a reduction in damages pursuant to section 10(b)(6)(C) of the DCFMLA (D.C. Official Code § 32-509(b)(6)(C)).
1623.14 If either party fails to appear without good cause, the hearing examiner may hold that party in default, or may go forward with the hearing and decide the case on the basis of the record and the evidence presented by the appearing party.
1623.15 The hearing examiner may exclude evidence from the record if it is incompetent, irrelevant, immaterial, or unduly repetitious.
1623.16 Admissions or representations made in connection with prior settlement negotiations shall be excluded from the record.
1623.17 Hearsay evidence may be admitted into the record at the discretion of the hearing examiner and accorded such weight as the hearing examiner considers warranted by the circumstances.
1623.18 The parties may stipulate as to any matter of fact. A stipulation shall satisfy a party’s burden of proving that fact.
1623.19 The hearing examiner may, on the motion of a party or on its own initiative, take official notice of matters of common knowledge or of any information contained in the records of OHR or of other matters that can be verified. Official notice of any fact shall satisfy a party’s burden of proving that fact.
1623.20 When a witness is unavailable, as defined by the Civil Rules of the Superior Court of the District of Columbia, to testify in person, or upon the agreement of the parties, the hearing examiner may admit the content of the proffered testimony, in an alternate form, such as the following:
(a) An affidavit attested to by the witness;
(b) A transcript of the deposition of the witness; or
(c) Written responses by the witness to interrogatories propounded by
the parties.
1623.21 If a party seeks the admission of an alternate form of testimony, the hearing examiner shall require that party to provide notice and evidence of the witness’s unavailability, as well as a proffer of the relevance of the testimony.
1624 FINDINGS AND RECOMMENDATIONS OF THE HEARING EXAMINER
1624.1 Within thirty (30) days after receipt of the transcript or post hearing submissions, whichever is later, the hearing examiner shall transmit to the Director the following:
(a) The complaint file;
(b)The record of the hearing;
(c) A report, including a brief and concise statement of the history of the subject matter of the complaint;
(d) Proposed findings of fact;
(e) Proposed conclusions of law;
(f) Analysis and recommendations addressing the following:
(1) Whether a violation of the Act occurred;
(2) Whether the employer shall pay the employee damages
and, if so, in what amount;
(3) Any reduction in damages for an employer who acted in good faith and has reasonable grounds to conclude that its conduct was not violative of the Act; and
(4) Any award of costs and reasonable attorney’s fees to the prevailing party; and
(g) A proposed decision and order.
1624.2 A copy of the hearing examiner’s report shall be transmitted to the parties or their representatives and, if not a party, to the agency involved, including a notice of the date on which the report was transmitted to the Director.
1624.3 Any party who is aggrieved by the adoption of the hearing examiner’s report and proposed recommendation or order, may, within twenty (20) days after receipt of the report, submit to the Director a proposed substitute order or findings, along with arguments in support of the proposed substitute.
1625 FINAL DECISION OF THE DIRECTOR AFTER THE HEARING
1625.1 Following receipt of the hearing examiner’s recommendations or proposed decision or order, and any argument or proposed substitute order or findings submitted by a party, the Director shall do one of the following:
(a) Render a final decision which may adopt, reject, or modify the decision of the hearing examiner in whole or in part; or
(b) Remand the matter for further hearing.
1625.2 If the Director rejects or modifies the recommended decision of the hearing examiner, the final decision of the Director shall set forth in detail the specific reasons for rejection or modification.
1625.3 The final decision of the Director shall be served on the parties or their representatives and, if not a party, the agency involved.
1625.4 Either party may file a written request with the Director for reconsideration or to reopen the case within fifteen (15) days after the date of issuance of the final decision.
1625.5 A party seeking reconsideration of the Director’s final decision shall submit an application for reconsideration to the Director in writing, stating specifically the grounds upon which the request for reconsideration is based. The grounds shall be limited to misapplication of law, material misstatement of fact, or discovery of evidence not available during the investigation.
1625.6 A request for reconsideration shall only be considered if the requesting party demonstrates that there is newly discovered evidence that is competent, relevant, and material and was not reasonably discoverable prior to issuance of the final decision by the Director and that such evidence, if credited, would alter the ultimate outcome in the case.
1625.7 The letter transmitting the final decision of the Director shall advise the parties of their right to request reconsideration of the case pursuant to § 1625.4 or to seek judicial review of the decision by a court of competent jurisdiction.
1625.8 If either party requests reconsideration or the reopening of the case pursuant to § 1625.4, and the Director determines that the case should be reconsidered, the Director shall inform the parties that the case is being reconsidered or reopened and that the final decision previously issued by the Director is vacated or stayed.
1625.9 If neither party requests reconsideration or the reopening of the case pursuant to § 1625.4, the final decision of the Director shall become the final administrative action of the District government fifteen (15) days after issuance of the decision, and the parties shall be deemed to have exhausted all administrative remedies.
1625.10 If the Director decides not to grant a request for reconsideration, the Director shall so notify the parties in writing. At the time the notification is issued, the decision previously issued shall become the final administrative action of the District government.
1625.11 If no action is taken on a request for reconsideration or to reopen a case within ninety (90) days after the request is filed, the request shall be deemed disapproved, and the decision previously issued shall become the final administrative action of the District government.
1625.12 In the interests of justice, the Director may, on his or her own initiative, reopen or reconsider a case in which the Director has issued a decision at any time prior to the filing of an appeal by either party with a court of competent jurisdiction.
1625.13 If the Director reconsiders or reopens a case and modifies the case findings, the Director shall inform the parties that the decision previously issued by the Director is vacated and issue a second decision and order.
1625.14 A party may appeal the final decision of OHR to the Superior Court of the District of Columbia.
1625.15 The appealing party must file a Petition for Review with the Clerk of the Superior Court’s Civil Division within thirty (30) days after service of notice of the final decision.
1699 DEFINITIONS
1699.1 For the purposes of this chapter, the following terms and phrases shall have the meanings ascribed:
Agency or agencies – an agency or agencies of the District of Columbia government.
Child – (a) a person under twenty-one (21) years of age; (b) a person, regardless of age, who is substantially dependent upon the employee by reason of physical or mental disability; and (c) a person who is under twenty-three (23) years of age who is a full-time student at an accredited college or university.
Committed relationship – a domestic partnership, as defined in section 2(4) of the Health Care Expansion Act of 1992; D.C. Official Code § 32-701(4), or a familial relationship between two individuals demonstrated by such factors as, but not limited to, mutual economic interdependence, including joint bank accounts, joint tenancy, shared lease, and joint and mutual financial obligations such as loans; domestic interdependence, including close association, public presentment of the relationship, and exclusiveness of the relationship; length of the relationship; and the intent of the relationship, as evidenced by a will or life insurance.
Director – the Director of the Office of Human Rights.
Employee employed in an instructional capacity – an employee employed principally in an instructional capacity by an educational agency or school whose principal function is to teach and instruct students in a class, a small group, or an individual setting, and includes athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. The term does not include teacher assistants or aides who do not have as their principal function actual teaching or instructing, or auxiliary personnel, such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, bus drivers, or other primarily noninstructional employees.
Employer – an individual, firm, association, or corporation, a receiver or trustee of any individual firm, association, or corporation, or the legal representative of a deceased employer, including the District of Columbia government, who employs the services of another individual for pay in the District.
Employment benefit – a benefit, other than salary or wages, provided or made available to an employee by an employer, including, but not limited to, group life, health, and disability insurance; sick and annual leave; and educational and pension benefits, regardless of whether the benefit is provided by a policy or practice of an employer or by an employee welfare benefit plan as defined in title 1, subtitle A, section 3(3) of the Employee Retirement Income Security Act of 1974, effective September 2, 1974 (88 Stat. 833; 29 U.S.C. § 1002(1)).
Family member – (a) a person related by blood, legal custody, or marriage; (b) a foster child; (c) a child who lives with an eligible employee and for whom the eligible employee permanently assumes and discharges parental responsibility; or (d) a person with whom the eligible employee shares or has shared, within the last year, a mutual residence and with whom the eligible employee maintains a committed relationship.
Health care provider – a person licensed under federal, state, or District law to provide healthcare services.
Intermittent leave – leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time. Intermittent leave may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six (6) months, such as for chemotherapy.
Local educational agency – this term shall have the same meaning as the term has in section 1471(12) of the Elementary and Secondary Education Act of 1965, approved April 28, 1988 (102 Stat. 201; 20 U.S.C. § 2891(12)).
Mayor – the Mayor of the District of Columbia.
Primary employer – an employer that shares a joint employment relationship with a secondary employer regarding an employee. The primary employer generally has the following authority or responsibilities: hiring and firing, assigning or placing the employee, making payroll, and provision of employment benefits. For a joint employment relationship that exists when a temporary placement agency supplies employees to a second employer, the placement agency most commonly would be the primary employer.
Reduced leave schedule – leave that is scheduled for a fewer number of hours than the employee is officially scheduled to work each workweek or workday. A reduced leave schedule is one that includes less than forty (40) hours or five (5) days in a given week. Examples of reduced schedule leave would include where an employee who typically works a full-time schedule works less than full-time due to the fatigue, pain, or anxiety caused by the employee’s normal schedule or due to a serious health condition, or where an employee works a reduced schedule in order to provide care or psychological comfort to a family member with a serious health condition who does not require full-time care.
Secondary employer – an employer that shares a joint employment relationship with a primary employer regarding an employee. A secondary employer generally lacks authority over an employee regarding things such as hiring and firing, assigning or placing the employee, making payroll, and provision of employment benefits. For a joint employment relationship that exists when a temporary placement agency supplies employees to another employer, that employer which receives the employees would generally be the secondary employer.
State – a state of the United States, the District of Columbia, or a territory or possession of the United States.
Workweek – a period of not more than forty (40) hours over seven (7) consecutive days, beginning on a day designated by the employer.
