6037006 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 Sections 404(a) and 1201 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-604.04(a) (2014 Repl.) and §§ 1-612.01 et seq. (2014 Repl.)), hereby gives notice that final rulemaking action was taken to adopt the following rules amending Chapter 12 (Hours of Work, Legal Holidays and Leave) of Title 6 (Personnel), Subtitle B (Government Personnel), of the District of Columbia Municipal Regulations (DCMR).
The purpose of the rulemaking notice is to: (1) reorder, renumber and make minor changes to Sections 1204 (Establishment of Scheduled Tours of Duty), 1208 (Flexible Work Schedule), 1209 (Alternative Work Schedule), 1210 (Compressed Work Schedule); (2) rename Section 1211 from “Telecommuting” to “Telework,” and to add provisions on “Situational Telework;” (3) make a change to a subsection number in Subsection 1223.6 of Section 1223 (Effect of Holidays) following amendments to the chapter; (4) amend Subsection 1261.2 of Section 1261 (Funeral Leave) to change the number of additional days of leave an employee can request following the passing of an immediate family member; and (5) move Subsections 1270.3 through 1270.10 of Section 1270 (Declared Emergencies - In General) to Section 1271 (Declared Emergencies - Early Dismissals) and rename Section 1271 to “Declared Emergencies – Emergency and Essential Employees,” with a new provision added in Subsection 1270.6. In addition, prior Sections 1271 through 1273 have been renumbered to 1272 through 1274, and clarifying language on the leave status of an employee that uses a full day of leave on a day when a late arrival policy is in effect (§ 1272) has been added. New Sections 1283 through 1288 on the Government Paid Family Leave Program have also been added to the chapter. Section 1299 (Definitions) has been amended to add definitions for the terms “Situational Telework,” “Substantially Similar Position,” “Telework,” “Uniformed Member,” and to amend the definition of the term “Unscheduled Telecommuting” and change the term to “Unscheduled Telework.”
No comments were received to the Notice of Proposed Rulemaking published in the D.C. Register on November 27, 2015 at 62 DCR 015359, and during a notice of extension of the comment period published on January 8, 2016 at 63 DCR 428. However, Sections 1283 through 1288 were renumbered (previously 1282 through 1287 in the proposed rulemaking) to correct a numbering error. The rules were adopted as final on May 6, 2016 and will become effective upon publication of this notice in the D.C. Register.
Chapter 12, HOURS OF WORK, LEGAL HOLIDAYS AND LEAVE, of Title 6-B DCMR, GOVERNMENT PERSONNEL, is amended as follows:
Section 1204, ESTABLISHMENT OF SCHEDULED TOURS OF DUTY, Subsection 1204.1, is amended to read as follows:
1204.1 Agencies shall establish scheduled tours of duty consistent with the provisions of Subsection 1204.2 of this section, except when the Mayor determines that an agency would be seriously handicapped in carrying out its functions, or that costs would be substantially increased, and mandates an alternative work schedule as provided in Section 1208 of this chapter.
Subsection 1204.2 is amended as follows:
The lead-in language of paragraph (b) is amended to read as follows:
(b) Except when an alternative work schedule has been approved as provided in Section 1208 of this chapter;
Paragraph (d) is amended to read as follows:
(d) Breaks in working hours of more than one (1) hour shall not be scheduled during the working hours of a basic workday, except when a flexible work schedule has been approved as provided in Section 1209 of this chapter;
Sections 1208 thru 1211 are amended to read as follows:
1208 ALTERNATIVE WORK SCHEDULES
1208.1 An alternative work schedule, as defined in Section 1299 of this chapter, is inclusive of:
(a) A flexible work schedule, pursuant to Section 1209; and
(b) A compressed work schedule, pursuant to Section 1210.
1208.2 The Mayor may establish a mandatory alternative work schedule, as provided in Subsection 1204.1.
1208.3 Pursuant to Section 1201(e) of the CMPA (D.C. Official Code § 1‑612.01(e) (2014 Repl.)), an agency director may establish an alternative work schedule for employees when such a work schedule is considered practicable and feasible and the costs of the agency will not be substantially increased.
1208.4 Employee participation in an alternative work schedule established by an agency director shall be voluntary.
1208.5 An alternative work schedule, if established, must be offered on an equal basis to all agency employees who are in substantially similar positions.
1208.6 An agency head’s decision to exclude classes of positions from participating in an alternative work schedule shall be final and not subject to appeal or grievance.
1208.7 The basic requirements for establishing an alternative work schedule shall be as follows:
(a) The basic forty (40)-hour workweek may be scheduled on fewer than five (5) days;
(b) The working hours in each day of the basic workweek need not be the same; and
(c) The basic non-overtime workday may exceed eight (8) hours.
1208.8 Independent agencies may develop an alternative work schedule policy that differs from the provisions in Section 1208 through 1210 of this chapter.
1209 FLEXIBLE WORK SCHEDULE
1209.1 Pursuant to Section 1201(e) of the CMPA (D.C. Official Code § 1‑612.01(e) (2014 Repl.)), a flexible work schedule may be established by an agency for employees when:
(a) Such a work schedule is considered both practicable and feasible in terms of increased employee morale, increased productivity, and improved service to the public; and
(b) Agency management determines that the schedule will not have an adverse impact on service to the public, and that costs to the agency will not increase substantially.
1209.2 A flexible work schedule, as defined in Section 1299 of this chapter, allows an employee to determine his or her own schedule within designated hours set by the employing agency, subject to certain core hours set by the agency during which the employee must work.
1209.3 The basic requirements for a flexible work schedule shall include the following:
(a) The designation of core hours during which all employees are required to be present, except for authorized lunch periods;
(b) The designation of flexible time periods during which the employee has the option of selecting and varying his or her starting and end time but such flexible time periods may not commence prior to 6:00 a.m., nor end after 6:00 p.m.;
(c) The maintenance of accurate time and attendance controls must be in place to ensure that each employee works or otherwise accounts for eight (8) hours per day, five (5) days per week; and
(d) Prior approval must be obtained by the agency head or the appropriate personnel authority before an employee may participate in a flexible work schedule.
1210 COMPRESSED WORK SCHEDULE
1210.1 Pursuant to Section XII of the CMPA (D.C. Official Code § 1-612.01 (2014
Repl.)), a compressed work schedule may be established by an agency for employees when:
(a) Such a work schedule is considered both practicable and feasible in terms of increased employee morale, increased productivity, and improved service to the public; and
(b) If agency management determines that the schedule will not have an adverse impact on public service, and that costs will not increase substantially.
1210.2 A compressed work schedule, as defined in Section 1299 of this chapter, allows a full-time or part-time employee to work an eighty (80)-hour biweekly schedule or a less than eighty (80)-hour biweekly schedule, respectively, in fewer than ten (10) workdays.
1210.3 In accordance with Section 6 of the 2004 District of Columbia Omnibus Authorization Act, approved October 30, 2004 (Pub. L. 108-386, 118 Stat. 2228; D.C. Official Code § 1-510), an employee shall not be eligible earn overtime during his or her regular tour of duty in a compressed work schedule even if such tour of duty exceeds eight (8) hours.
1210.4 The tour of duty for each employee under a compressed work schedule program shall be defined by a fixed schedule established by the agency.
1210.5 The established work schedule of an employee working a compressed work schedule may not exceed ten (10) hours for any workday.
1211 TELEWORK
1211.1 Telework is an arrangement in which an employee routinely, during a declared emergency (if directed to do so), or in situational cases as specified in this section, performs officially assigned duties at his or her home address of record.
1211.2 Based on the needs of the organization, and to the extent possible without diminishing employee performance, each agency is authorized to establish telework for eligible employees of the agency, except as provided in Subsection 1211.10 of this section.
1211.3 Telework, as provided in this section, must be offered on an equal basis to all agency employees who are in substantially similar positions.
1211.4 Telework shall be part of a scheduled tour of duty, subject to a written agreement between the agency and employee, and only permitted after an employee has completed any telework training required by the District of Columbia Department of Human Resources.
1211.5 Requests to engage in telework must:
(a) Be signed by the employee;
(b) Be approved in writing and in advance by the employee’s supervisor and the agency head (or his or her designee); and
(c) Verify that the position, during the period which an employee will telework, and the telework arrangement comply with the conditions set forth in Subsection 1211.7 of this section.
1211.6 Unless otherwise approved by the agency head and personnel authority, an employee shall be limited to two (2) days per workweek of telework.
1211.7 Positions best suited for telework are those that:
(a) Have job tasks that are quantifiable, primarily project-oriented 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.
1211.8 An employee, who has been approved in writing to telework, may periodically request authorization to utilize situational telework on a temporary basis for the following circumstances:
(a) When an employee has a short-term need for uninterrupted time to complete work on a complex project or report. In such cases, the employee must provide twelve (12)-hour advance written notification to his or her immediate supervisor, and obtain the written approval from the immediate supervisor and agency head (or his or her designee);
(b) When an employee is recovering from an illness or an injury and is temporarily unable to physically report to his or her official work site, but is physically and mentally able to perform his or her official duties from a remote location. When possible, the employee must provide a twenty-four (24) hour advance written notice and must in all circumstances obtain approval from his or her immediate supervisor; or
(c) When, due to the occurrence of a home repair emergency, the employee is prevented from reporting to his or her official work site.
1211.9 An employee’s use of situational telework as provided in Subsections 1211.8(a) through (c), shall not exceed three (3) consecutive workdays.
1211.10 Notwithstanding the provisions of Subsections 1211.8(a) through (c), and on a case-by-case basis, an agency head may authorize the use of situational telework in other circumstances.
1211.11 An employee’s approval and use of situational telework, as provided in Subsections 1211.8(a) through (c) of this section, is at the discretion and approval of the agency head or the employee’s immediate supervisor.
1211.12 An employee shall not be eligible to participate in telework as provided in this section if:
(a) The employee’s performance rating for the most recent rating period is Marginal Performer (Level 2) (or equivalent) or lower as provided in Chapter 14 of these regulations; or
(b) The employee is on a Performance Improvement Plan (PIP) as provided in Chapter 14.
1211.13 Authorization to engage in telework, as provided in this section, may be rescinded by the agency head (or designee) or the immediate supervisor for reasons that include, but are not limited to, a determination that the employee has failed to accomplish the work as prescribed or due to the agency’s organizational or operational needs.
1211.14 Whenever an agency head (or designee) or immediate supervisor determines that the approval for telework is to be rescinded pursuant to Subsection 1211.13 of this section, the employee shall be given, where practicable, at least two (2) weeks’ notice prior to the rescission.
1211.15 Upon termination of a telework agreement, the employee shall return to the duty station and tour of duty that existed prior to receiving approval to engage in telework, unless the duty station or tour of duty has been changed by the employee’s supervisor in accordance with applicable rules.
1211.16 Failure of an employee to return to his or her original duty station with the same tour of duty upon rescission of an authorization to engage in telework, shall result in the forfeiture of the employee’s opportunity to engage in telework for a period of three (3) years and, if appropriate, may result in disciplinary action.
1211.17 By October 1 of each year, subordinate agencies shall submit a report to DCHR covering the agency’s telework program activities for the prior fiscal year. The report shall include:
(a) The name, grade, step, and position title of each employee approved to telework;
(b) The total number of days each employee is authorized to telework per workweek;
(c) The total number of employees working under an approved telework agreement;
(d) The number of employees that completed the required telework training;
(e) The number of telework agreements terminated and the reason(s) for the termination;
(f) The number of telework applications denied and the reason(s) for each denial; and
(g) A description of any employee or group of employees excluded from participating in telework and the reasons for such exclusions.
1211.18 The D.C. Department of Human Resources shall conduct periodic audits of subordinate agency telework programs for the purpose of ensuring compliance with the District’s personnel regulations and human resource procedures. The audit may also cover PeopleSoft actions that the agency inputs relative to telework.
Section 1223, EFFECT OF HOLIDAYS, Subsection 1223.6, is amended to read as follows:
1223.6 An employee under an alternative work schedule pursuant to Section 1208 of this chapter who performs work on a holiday shall be entitled to holiday premium pay as provided in Section 1132 of Chapter 11 of these regulations.
Section 1261, FUNERAL LEAVE, is amended to read as follows:
1261.1 In accordance with the Funeral and Memorial Service Leave Amendment Act of 2013, effective February 22, 2014 (D.C. Law 20-83; D.C. Official Code § 1-612.03(n) (2014 Repl.)), an employee shall be entitled to not more than three (3) days of authorized absence without loss of or reduction in pay, leave to which otherwise entitled, or credit for time or service, to make arrangements for or attend the funeral or memorial service of an immediate relative, as defined in Section 1299 of this chapter.
1261.2 In addition to the three (3) days of authorized absence as provided in Subsection 1261.1 of this section, unless the mission of the agency would be seriously impaired, an agency shall grant an employee’s request for annual leave, sick leave, exempt time off, or compensatory time for an additional two (2) days upon the death of an immediate relative.
1261.3 The days requested for funeral leave need not be consecutive, but if they are not consecutive, the employee shall furnish to the approving authority satisfactory reasons justifying the granting of funeral leave for nonconsecutive days.
1261.4 When approved, an employee shall receive funeral leave for all previously scheduled hours during the leave period, including previously scheduled overtime hours. However, an employee shall not be eligible for overtime premiums for the same hours he or she receives funeral leave.
Sections 1270 thru 1274 are 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 1272 of this chapter;
(b) In response to circumstances that develop prior to normal duty hours, employees may be authorized to take unscheduled leave, unscheduled telework, or arrive late to work, as provided in Section 1273 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 1274 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.
1271 DECLARED EMERGENCIES—EMERGENCY AND ESSENTIAL EMPLOYEES
1271.1 For the purposes of this section as well as Sections 1272 through 1274 of this chapter, certain District government employees shall be designated as “essential” or “emergency” employees.
1271.2 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 as “essential” shall be required to be at work regardless of the emergency situation declared.
1271.3 The position description with duties as described in Subsection 1271.2 of this section shall state that the incumbent of the position shall be considered an essential employee required to be at work when an emergency is declared, regardless of the emergency situation declared.
1271.4 An employee designated as an “essential employee” under the provisions of Subsection 1271.2 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 for new employees, as applicable. The required thirty (30)-day notification period may be suspended during a period of a declared emergency.
1271.5 An emergency employee is an employee whose services are necessary for the continuity of operations during a declared emergency. An emergency employee typically provides advice, recommendations, or specific functional support.
1271.6 An emergency employee may be designated from any employment status category (including, but not limited to: Management Supervisory Service, Excepted Service, Legal Service, Career Service, Education Services, etc.).
1271.7 An employee designated as an “emergency employee” under the standards of Subsection 1271.5 of this section shall be informed of the designation in writing within thirty (30) days of such designation. The required thirty (30)-day notification period and the requirement that notification be in writing may be suspended during a period of a declared emergency or during the period of time preceding an expected declaration of an emergency. A written notification shall follow a verbal notification.
1271.8 An agency head may activate an employee designated as an “emergency employee” based on the nature and circumstances of a particular declared emergency. An emergency employee who has been designated and activated will be called in to work, required to stay at work, or required to telework, if approved to do so, during the particular emergency situation.
1271.9 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.
1271.10 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 Section 1135 of Chapter 11 of these regulations.
1272 DECLARED EMERGENCIES—EARLY DISMISSALS
1272.1 The Mayor may, whenever he or she deems it to be appropriate in the public interest, authorize the early dismissal of employees, whereupon he or she shall notify agencies to dismiss, for a specified period of time, and grant administrative leave to, as many employees as the agency head determines to be practicable.
1272.2 Agency heads and other personnel authorities may dismiss, and grant administrative leave to, employees due to the breakdown of heating or air conditioning equipment and other similar situations within one or more of the agency’s or personnel authority’s facilities.
1272.3 Except as provided in Subsection 1272.5 of this section, whenever early dismissal has been authorized, all employees, except essential employees and emergency employees who have been activated subject to the provisions of Section 1271 of this chapter, shall be permitted to leave their assigned duty stations prior to the close of the normal workday, on administrative leave, if the following conditions are met:
(a) They are in a duty status when the notice of early dismissal is received; and
(b) Their regular tour of duty ends after the hour given as the authorized time for early departure.
1272.4 An employee who previously requested and was granted leave for the entire day shall be charged leave for the entire day, regardless of the early dismissal.
1272.5 If, after the notice of early dismissal, an employee requests and is granted leave, the employee shall be charged leave only for that period when leave commences, to the hour that early dismissal is authorized.
1272.6 If, prior to the notice of early dismissal, an employee requests and is granted leave, but otherwise makes known his or her intention of returning to duty status at a time that precedes the end of his or her regular tour of duty, the employee shall be charged leave only for the period of time specified.
1273 DECLARED EMERGENCIES—LATE ARRIVAL, UNSCHEDULED LEAVE, OR UNSCHEDULED TELEWORK POLICY
1273.1 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 a designated number of hours of excused absence;
(b) An unscheduled leave policy; or
(c) An unscheduled telework policy.
1273.2 Each employee shall be responsible for reporting for duty at the late arrival time, even upon the occurrence of conditions beyond the control of an employee, such as inclement or hazardous weather or a transportation disruption.
1273.3 Whenever the Mayor determines that a late arrival policy is in effect in accordance with Subsection 1273.1(a) of this section, an employee, other than an essential or emergency employee subject to the provisions of Section 1271 of this chapter, shall be authorized to arrive late, up to the number of hours specified by the Mayor, without loss of pay. An employee who utilizes leave for the entire day when a late arrival policy is in effect shall be charged the appropriate leave for the entire day.
1273.4 Whenever the Mayor determines that an unscheduled leave policy is in effect in accordance with Subsection 1273.1(b) of this section, an employee, other than an essential or emergency employee subject to the provisions of Section 1271 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.
1273.5 Whenever the Mayor determines that an unscheduled telework policy is in effect in accordance with Subsection 1273.1(c) of this section, an employee on a telework agreement may telework. An employee must inform his or her supervisor and timekeeper (or equivalent) of any unscheduled telework day(s) taken pursuant to this section.
1273.6 Whenever the Mayor determines that an unscheduled telework policy is in effect, an employee designated as an emergency employee who is activated is required to report to work unless he or she is directed to telework.
1273.7 An employee who does not report to work (or who does not telework, when authorized to do so) and does not request leave during a period when an unscheduled leave or unscheduled telework policy is in effect, and refuses to consent to any type of leave upon return to duty, shall be charged with absence without official leave.
1274 DECLARED EMERGENCIES—SHUT-DOWN
1274.1 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.
1274.2 Agency heads and other personnel authorities may authorize the shut-down of one or more of their facilities due to a breakdown of heating or air conditioning equipment or other similar situations, and shall ensure that all affected employees are promptly notified.
1274.3 Except as provided in Subsections 1274.4 and 1274.5 of this section, employees shall be given administrative leave for the entire day of shut-down.
1274.4 Each essential employee subject to the provisions of Section 1271 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 a transportation disruption.
1274.5 Each emergency employee subject to the provisions of Section 1271 of this chapter shall be required to report for duty or telework, if activated, even upon the occurrence of conditions beyond the control of an employee, such as inclement or hazardous weather or transportation disruption.
1275 - 1278 [RESERVED]
New Sections 1283 thru 1288 are added to the chapter to read as follows:
1283 GOVERNMENT FAMILY LEAVE PROGRAM – GENERAL PROVISIONS
1283.1 Eligible District government employees are entitled to up to eight (8) workweeks of paid family leave within a twelve (12) month period for a single qualifying event. Qualifying events are described in Subsection 1284.2.
1283.2 For the purposes of determining the number of hours of paid family leave to which an employee may be entitled, a workweek shall be calculated as the average weekly hours paid within the preceding six (6) months, excluding overtime, or, if reliable historical data is not available, the number of hours scheduled for an employee’s typical tour of duty.
1283.3 An eligible employee shall receive paid family leave for only one (1) qualifying event within a twelve (12) month period.
1283.4 For purposes of Sections 1283 through 1288, the following meanings apply:
(a) “Child” means a person under twenty-one (21) years of age; an individual, regardless of age, who is substantially dependent upon the employee due to physical or mental disability; or a person under twenty-three (23) years of age who is a full-time student at an accredited college or university.
(b) “Conditional approval” means the temporary approval of an application when the employee cannot provide the required documentary proof prior to the qualifying event, including in instances of an emergency.
(c) “Eligible employee” means a District government employee, other than a temporary employee appointed for less than ninety (90) days, an intermittent employee, and any other employee who is not eligible to accrue annual leave.
(d) “Family member” means an individual related to the employee by blood, marriage, domestic partnership, or legal custody (including foster care); a child who lives with the employee and for whom the employee has permanently assumed and discharges parental responsibility; and an individual with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship.
(e) “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, as defined in Section 2(9) of 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(9)).
1284 GOVERNMENT FAMILY LEAVE PROGRAM – ELIGIBILITY
1284.1 To be eligible for the paid family leave program, the employee must meet the following criteria:
(a) The employee must not be a temporary employee appointed for less than ninety (90) days; or
(b) The employee must not be an intermittent employee, as defined in Section 1299;
(c) The employee must not have received (or been paid) paid family leave benefits for another qualifying in the twelve (12) months preceding the start date for the new qualifying event; and
(d) The qualifying event experienced by the employee must have occurred within twelve (12) months before the start date of the employee’s paid family leave.
1284.2 An employee may be eligible for paid leave under this section for any of the following qualifying events:
(a) The birth of a child of the employee;
(b) The legal placement of a child with the employee (such as through adoption, guardianship, or foster care);
(c) The placement of a child with the employee, when the employee permanently assumes and discharges parental responsibility for that child; or
(d) When a family member suffers from a serious health condition, as defined in Section 1283 of this chapter that requires the employee’s care.
1284.3 An eligible employee shall provide proof that a qualifying event has occurred within the last twelve (12) months, or will likely occur in the next twelve (12) weeks, by submitting one (1) of the following:
(a) For the birth of a child, a certificate of live birth listing the employee as a legal parent or other reliable documentation evidencing the birth of the employee’s child (unless waived by the agency);
(b) For legal placement of a child, a certified copy of the court order granting the employee legal custody of the child;
(c) For non-legal placements of a child, two (2) official records establishing the employee as a named caregiver to the child (such as school enrollment, insurance records, or medical records); and reliable documentation as to the date when the placement occurred (such as insurance records and certificates of death); or
(d) For the care of a family member with a serious health condition:
(1) Government or other reliable documentation establishing a family relationship (including but not limited to, birth certificate, marriage license, court order, joint lease, and joint bank account statement); and
(2) A completed Certification of Health Care Provider for Family Member’s Serious Health Condition, on a form supplied by the personnel authority.
1284.4 A child returning from residing away from the employee while attending an accredited college or university, summer school, or any other routine or temporary relocation, including visits with relatives or friends, shall not constitute placement with the employee under the paid family leave program.
1285 GOVERNMENT FAMILY LEAVE PROGRAM – APPLICATION
1285.1 To apply for paid family leave, an employee shall submit the District of Columbia Family and Medical Leave Act (DCFMLA), Request for Family and Medical Leave and Government Family Leave application and provide any required additional documentation to his or her agency FMLA Coordinator.
1285.2 Application materials shall be submitted to the agency FMLA Coordinator at least thirty (30) days prior to the qualifying event, if possible. Absent good cause, a failure to provide the requisite notice may result in delaying a decision on the requested leave until the required certification is provided.
1285.3 If an agency has reason to doubt the validity of the medical documentation provided by the employee, the agency shall consult with its agency counsel prior to requesting that the employee obtain a second opinion from another health care provider.
1285.4 The application materials shall be reviewed by the FMLA Coordinator for a determination of eligibility. The FMLA components of the application, if applicable, shall be reviewed and processed in accordance with the rules established by the Office of Human Rights.
1285.5 If the employee cannot provide the required documentary proof prior to the qualifying event, the application may be conditionally approved. In such a case, the necessary documentation must be received by the agency FMLA Coordinator no more than four (4) weeks following the qualifying event.
1285.6 Following a review of the application for paid family leave, the FMLA Coordinator shall approve, conditionally approve, or deny the application. An application may only be denied when the employee fails to provide the required proof (requisite documentation), or is otherwise ineligible.
1285.7 If the application is approved, the employee shall be credited with a family leave balance equal to the time needed for the qualifying event, up to eight (8) workweeks as specified in Subsections 1283.1 and 1283.2.
1285.8 Credited paid family leave may be used in increments for an approved qualifying event, but each increment shall not be less than one (1) day. When used intermittently, the agency may require additional documentation to verify the leave is used for the qualifying event.
1285.9 When paid family leave is used intermittently as provided in this chapter, such usage shall be requested in the same manner as sick leave as provided in Subsection 1242.5 of this chapter.
1285.10 Employees needing intermittent leave for foreseeable medical treatment must work with their employers to schedule leave so as not to unduly disrupt the employer’s operations, subject to the approval of the employee’s health care provider.
1285.11 Leave credited under this section shall expire on the earlier of:
(a) The length of the leave period approved in the application; or
(b) Twelve (12) months following the date of the qualifying event.
1286 GOVERNMENT FAMILY LEAVE PROGRAM – PROTECTIONS AND LIMITATIONS
1286.1 An employee who seeks or exercises his or her right to paid family leave shall enjoy the same employment and benefits protections afforded under DCFMLA (D.C. Official Code §§ 32-501 et seq.) and federal FMLA (29 U.S.C. §§ 2601 et seq.).
1286.2 An employee’s use of paid family leave shall count against the sixteen (16) workweeks of family leave under Section 3 of the DCFMLA (D.C. Official Code 32-502) and, against the twelve (12) workweeks under the federal FMLA.
1286.3 An employee approved for paid family leave shall:
(a) Retain his or her employment, seniority, and group health plan coverage while on paid family leave; and
(b) Be returned to the same position that he or she held prior to commencing paid family leave, or to a substantially similar position, upon returning to work.
1286.4 An employee shall accrue annual and sick leave while on paid family leave.
1286.5 Paid family leave shall only be used for the purposes outlined in Sections 1283 and 1284 and only for the qualifying event for which approved.
1286.6 An employee may not expand his or her DCFMLA protections beyond sixteen (16) weeks by applying for paid family leave for the same qualifying event in which the DCFMLA was previously approved.
1286.7 An employee on paid family leave may not engage in outside employment if that employment would conflict with the employee’s typical tour of duty with the District of Columbia government.
1286.8 An employee on paid family leave must provide care to the child or family member for whom the leave was approved on each day for which paid family leave is used. An employee shall not receive paid family leave when the qualifying child or family member is entrusted to the care of another for four (4) or more hours during the employee’s typical tour of duty.
1286.9 A probationary employee who receives paid family leave shall have their probationary period extended by the length of the paid family leave.
1286.10 The maximum amount of time a probationary period can be extended, as provided in Subsection 1286.9 of this section, is eight (8) workweeks.
1287 GOVERNMENT FAMILY LEAVE PROGRAM – PREMIUM PAY
1287.1 A District government employee who qualifies for and has been approved for paid family leave shall not be entitled to receive premium pay, as provided in Chapter 11 of the regulations, during hours that an employee receives paid family leave.
1288 GOVERNMENT FAMILY LEAVE PROGRAM – MISUSE OF PAID FAMILY LEAVE
1288.1 When an agency head (or his or her designee) has determined that an employee has used paid family leave for a purpose other than that specified in supporting documentation submitted by the employee, or as provided in this chapter, the application shall be void and the action considered fraud against the District government, and the employee may be subject to disciplinary action in accordance with Chapter 16.
1288.2 Upon determination that fraud has been committed as provided in Subsection 1288.1, the inappropriate usage of paid family leave shall be counted as a debt to the District government as provided in Chapter 29.
Section 1299, DEFINITIONS, is amended to insert the following definitions, and to remove the definition for the term “Unscheduled telecommuting” and replace it with the definition for the term “Unscheduled telework”, as follows:
District of Columbia Family and Medical Leave Act (DCFMLA) – refers to 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.)
Situational telework – a temporary arrangement approved, in writing, in advance, in which the employee is authorized to telework for, but not limited to, the completion of a project or report, due to an injury or illness which prevents the employee from physically reporting to his or her official worksite, or due to a home repair emergency.
Substantially similar position – employees in an agency with the same grade, location, tour of duty, and with like duties and responsibilities.
Telework – an arrangement in which an employee regularly, or during a declared emergency, performs officially assigned duties at home or other worksites geographically convenient to the employee’s residence, and which is approved, in advance and in writing, by the employee’s immediate supervisor and agency head.
Uniformed member – for purposes of this chapter, the term uniformed member refers to a sworn employee of the Metropolitan Police Department or an employee who is a firefighter, emergency medical technician, or paramedic with the Fire and Emergency Medical Services Department.
Unscheduled telework – an employee who is on an approved telework agreement may telework without obtaining advance approval when a declared emergency is in effect on a day or during a period during which the employee was not previously scheduled to telework.
