The Families First Coronavirus Response Act provides District government employees who are unable to work or telework due to COVID-19 circumstances, a new, temporary COVID Sick Leave benefit. This benefit has been added to our family and medical leave program. This issuance outlines the COVID Sick Leave benefit, explains the application process, and provides guidance to subordinate agencies (including independent agencies with service agreements) on handling applications, so that eligible employees may take full advantage of this important benefit.

The COVID Sick Leave benefit is managed under our family and medical leave programming. Employees must apply with their FMLA Coordinators to determine eligibility and, if qualified, submit a leave request with their supervisor. Approval for leave using this benefit may be subject to operational constraints and, for employees in health care or emergency response positions, may be denied or rescinded at any time to support the District’s response to the COVID-19 public health emergency.

This most recent update implements the U.S. Department of Labor’s recent guidance and revisions to regulations pertaining to the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act.

The District government will provide employees who are unable to work or telework with between two and twelve workweeks of paid COVID Sick Leave for certain circumstances related to the current public health emergency. COVID Sick Leave is an employee benefit that is separate and in addition to an employee’s accrued annual and sick leave.

To qualify for the COVID Sick Leave benefit, an employee must:

1. Be an employee of the District of Columbia government;
2. Be unable to work or telework due to COVID-19;
3. Be in need of leave because the employee:
   1. Quarantines or isolates pursuant to a District, federal, or state order relating to COVID-19;
   2. Quarantines pursuant to advisement from a health care provider relating to COVID-19;
   3. Is seeking a medical diagnosis relating to symptoms consistent with COVID-19;
   4. Is caring for an individual who is subject to a District, federal, or state quarantine or isolation order or advised to self-quarantine by a health care provider, relating to COVID-19;
   5. Is caring for a child under the age of 18 years (or an adult child who is 18 years of age or older and who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability) because his or her child’s school or childcare provider is unavailable due to the COVID-19 emergency; or
   6. Is experiencing substantially similar circumstances as established by the Secretary of the United States Department of Health and Human Services.
4. Submit a Family and Medical Leave Application Form (Attachment 2: (FML-01 – Family and Medical Leave Application)

District government employees who qualify for leave under one of the factors in (3)(a)-(f) may be approved once for up to two weeks of the COVID Sick Leave. Employees who satisfy factor (3)(e) may be approved once for up to an additional 10 weeks of the COVID Sick Leave benefit, depending on their prior leave taken under federal FMLA. If you have used FMLA within the last 12 months, please contact your FMLA Coordinator to determine whether you qualify for additional COVID Sick Leave.

Agencies with employees who qualify as health care providers or emergency responders may extend COVID Sick Leave to their workforce, if operationally feasible. We encourage these agencies to engage in a dialogue with employees about all available support options. When consistent with public health and safety, this may, but need not, include COVID Sick Leave. The use of COVID Sick Leave by these employees shall be subject to any limitations or restrictions established by their agency and may be denied or later rescinded at any time for any legitimate operational reason.For purposes of COVID Sick Leave:

“Health care providers” include the following:

1. Employees who are a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a Family and Medical Leave Act (FMLA) certification;
2. Employees who are capable of providing health care services, meaning they are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. Examples include nurses, nurse assistants, and medical technicians or any other employee who provides direct services described in this paragraph;
3. Employees providing healthcare services described in (2) who directly assist or are supervised by employees in (1) and (2); and
4. Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

“Emergency responders” include employees:

1. Who are necessary for the transport, care, health care, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. These employees include, but are not limited to, the D.C. National Guard, Department of Corrections, Department of General Services, Department of Public Works, Department of Youth and Rehabilitation Services, Fire and Emergency Medical Services Department, Homeland Security and Emergency Management Agency, Metropolitan Police Department, and Office of Unified Communications;
2. With skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as employees who work at such facilities and whose work is necessary to maintain the operation of the facility; and
3. An agency head determines are emergency responders that are necessary for the District’s response to COVID-19.

District government employees may apply for paid COVID Sick Leave as follows:

1. Complete a Family and Medical Leave Application Form (Attachment 1: FML-01);
2. Obtain any documents required to establish benefit eligibility;
3. Submit the completed application and supporting documents to their agency’s Family and Medical Leave Coordinator;
4. If approved, request COVID Sick Leave in PeopleSoft; and
5. Select the “COVID Sick Leave” time reporting code (TRC) on their timesheet.

COVID Sick Leave Application

To receive the paid COVID Sick Leave benefit, an employee must fill out and submit a Family and Medical Leave Application Form (Attachment 1: FML-01). On the form, the employee must provide his or her personal information including an e-mail address, the reason for the leave request, and the total number of hours being requested.

In the “Type of Paid Leave” section of the application, the employee must check “COVID Sick” and specify the number of paid leave hours requested. Employees who qualify for these programs and wish to request leave for more than the two to 12 workweeks they qualify for under the COVID Sick Leave program must identify other types of leave they wish to use for any additional time beyond the COVID Sick Leave program (e.g., annual leave, sick leave, compensatory leave, or leave without pay).

Proof of Eligibility

In addition to the Family and Medical Leave Application Form, an agency may require an employee to submit supporting documents that establishes the qualifying event for eligibility. Supporting documents include the following:

1. Quarantine or isolation due to a District, federal, or state COVID-19 related order, or the recommendation of a health care provider:
   1. The name of the applicable government entity or healthcare provider; and
   2. Documentation by health care provider or certification by the employee of their inability to telework due to COVID-19 related symptoms.
2. Caring for a person who is subject to a District, federal, or state COVID-19 related order or advised to self-quarantine by a health care provider:
   1. The name of the applicable government entity or healthcare provider; and
   2. Documentation by a health care provider or certification by the employee of inability to telework due to caring for a person with COVID-19 related symptoms.
3. Caring for a child whose school or childcare provider is unavailable because of COVID-19:
   1. The name of the employee’s child;
   2. The name of the school or childcare provider that has become unavailable;
   3. Certification by the employee that no other suitable person will be caring for the employee’s child for the period when the employee takes leave; and
   4. Certification by the employee that he or she is unable to telework and why.
4. Seeking a medical diagnosis related to symptoms consistent to COVID-19
   1. Medical documentation showing the employee consulted with a health care provider. This documentation must be submitted within 24 hours of being seen by the provider. Until such documentation is provided, employees who are absent because they are seeking a medical diagnosis related to symptoms of COVID-19 must inform their supervisor on a daily basis of their efforts to obtain a medical diagnosis; and
   2. Certification by the employee that he or she is unable to telework and the reason.

Note: All existing certification requirements under the federal FMLA and DCFMLA remain in effect if you are taking leave for one of the existing qualifying reasons under either program. For example, if you are taking leave beyond the two weeks of COVID Sick Leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the federal FMLA or DCFMLA.

Submitting the Application

An employee must submit his or her application and supporting documentation to the agency Family and Medical Leave Coordinator. Employees are required to submit their supporting documentation as soon as practicable. If the reason for leave is foreseeable, it will generally be practicable to provide notice and documentation prior to the need to take leave. If supporting documentation is not available at the time of application, an agency may conditionally approve the application. If conditionally approved, the employee must submit supporting documents as soon as practicable. Refer to the note below on "Conditional Applicants for more details.”

Conditional Applications

Supporting documentation may not always be available prior to applying for the COVID Sick Leave benefit. For example, an employee seeking medical attention for COVID-19 related symptoms will not have a medical note until after seeing the medical provider. In such a case, the agency may approve an application conditionally, and the supporting documentation must be supplied to the agency as soon as practicable. If supporting documentation is not received as soon as practicable, the agency FMLA Coordinator may deny the application for COVID Sick Leave and the employee will be liable for any conditionally approved leave that the employee has used.

The agency FMLA Coordinator serves as the primary contact in the agency on matters relating to COVID Sick Leave. FMLA Coordinators must process Family and Medical Leave Application forms as follows:

1. Notice of Eligibility. Within five days of receiving any application, FMLA Coordinators must forward a notice of eligibility to an applicant (Attachment 2: FML-02 form).
2. Notice of Leave Designation. Within five days of receiving the necessary documentation, FMLA Coordinators must provide applicants a letter informing them of their leave program designation and approval (or non-approval) (Attachments 3 - 5: FML 03, 3D and 3N). Agencies must forward all copies of documents to DCHR that resulted in a non-approval.
3. Approval Notifications. If an employee is approved for COVID Sick Leave, the FMLA Coordinator must send an approval notification to the appropriate entities to ensure that the employee is credited for the approved leave (Attachment 6: FML-04). Complete the FML-04, which is addressed to the District Family and Medical Leave Coordinator (DCHR).
4. Employee Information. Agency FMLA Coordinators must confirm that the correct employee ID number and employee record number are shown on the FML-04 form.

Additional guidance concerning Notice of Eligibility, Notice of Leave Designation and Approval Notifications is provided below.

NOTE: All documentation submitted by employees in relation to COVID Sick Leave (e.g., application and medical documentation) must remain confidential (see the “Records and Confidentiality” section in this issuance). The DCSF No. FML-04, Approval Notification, is the only document that may be disseminated to multiple personnel as identified on the form.

FMLA Coordinators must issue a Notice of Eligibility to an applicant within five days of receiving an application. The FMLA Coordinator shall also issue a Notice of Eligibility to an employee if the employee has been absent for a period of 3 or more days for family or medical reasons. To carry out this step, the FMLA Coordinator must determine eligibility, draft the notice, and issue the notice to the employee.

Determining Eligibility

The FMLA Coordinator must determine if the participant is eligible for COVID Sick Leave along with other eligible programs (e.g. Paid Family Leave, DCFMLA, and federal FMLA). Eligibility is determined by the date the leave period would start, not the date of application. Eligibility must be determined for each of the Family and Medical Leave programs: COVID Sick Leave, Paid Family Leave, DCFMLA, and federal FMLA.

Drafting the Notice

FMLA Coordinators must complete a Notice of Eligibility letter within five days of receiving a family and medical leave application. To draft the letter, the FMLA Coordinator must first gather all the relevant information from personnel records, including:

• The nature of the employee’s appointment;
• The combined number of hours of federal family and medical leave used in the last 12 months;
• The total number of compensable hours for the last 12 months (usually 2,080 hours for fulltime employees
• The total number of regular work hours for which the employee received pay within the last 12 months;
• The combined number of hours of family and medical leave used in the last 12 months;
• The total number of medical leave hours used in the last 24 months; and
• The total number of family leave hours used in the last 24 months.

This information shall be used when completing the eligibility letter. The eligibility letter will guide the FMLA Coordinator’s determination of the family and medical leave program(s) for which the employee is eligible.

Issuing the Notice

After the FMLA Coordinator completes the review of the application and supporting documentation, the Coordinator shall issue the notice to the employee. The notice must be delivered to the employee using the email address the employee provided on the FMLA application. If the employee is being notified that he or she is not eligible, a copy of the notification must be submitted to DCHR at [email protected] (refer to the section entitled “District Family and Medical Leave Coordinator”).

The FMLA Coordinator must issue a Notice of Leave Designation to an applicant within five days of receiving the required documentation to determine whether the applicant qualifies for the requested leave. The Notice of Leave Designation letters inform employees whether their leave has been: (a) approved, (b) deferred because more information is needed, or (c) not approved, as appropriate.

If the applicant was issued the FML-3D (Deferral) letter because more information was needed, the applicant has an additional 10 business days to provide the required documentation to the FMLA Coordinator. Once the applicant provides the required documentation, or the 10-day period expires, the FMLA Coordinator must issue the FML-03 letter (Approval) or the FML-3N (Non-Approval) letter, as appropriate, within five days. The coordinator must deliver the letter to the employee by hand, commercial courier (with tracking), or e-mail using the e-mail address supplied by the employee.

Approved Leave

Approvals should be made using the “Approved” designation letter template. In the letter, the FMLA Coordinator shall designate the employee for all the programs for which the employee is eligible and qualified. If possible, the FMLA Coordinator should indicate the total number of hours or weeks of program leave being used. Approval notifications must be copied to multiple parties (see the “Approval Notifications “section).

Deferred Leave

Whenever an employee’s supporting documentation is insufficient to establish a qualifying event, agencies should issue a designation letter deferring a decision using the “Deferred” designation letter template. In this letter, the FMLA Coordinator should explain what documentation the employee is lacking, what additional information is needed to complete the approval process, and the period in which the employee must submit the additional information.

Not Approved Leave

The FMLA Coordinator will issue a “Not Approved” designation if the event being used to apply for leave does not qualify for COVID Sick Leave, the employee is ineligible, or the employee fails to provide the necessary supporting documentation in the required timeframe. In this case, the FMLA Coordinator will issue a designation letter using the “Not Approved” designation letter template. Copies of “Not Approved” letters must be sent to [email protected].

Whenever an employee is approved for COVID Sick Leave, the employee’s timekeeper (or equivalent), the employee’s immediate supervisor, the agency head, and DCHR must be notified. The Family and Medical Leave Coordinator must submit approval notifications as follows:

1. DCHR. Email to [email protected].
2. Employee. A copy of the FML-04 must be provided to the employee.
3. Timekeeper (or equivalent). A copy of the FML-04 must be provided to the employee’s timekeeper (or equivalent).
4. Supervisor. A copy of the FML-04 must also be provided to the employee’s immediate supervisor or manager (whoever typically approves the employee’s leave).
5. Agency head. Send a copy of the FML-04 approval notification to the employee’s agency head.

Leave Requests Required

For time recording purposes, the employee or his or her timekeeper (or equivalent) must request COVID Sick Leave using standard PeopleSoft eTime leave procedures. See: Attachment 7: Requesting COVID Sick Leave in PeopleSoft).

If an agency requires the submission of paper leave slips, the employee must submit the D.C. Standard Form 71, Application for Leave (or equivalent). The employee may need to add COVID Sick Leave as a category on the paper form.

Use of COVID Sick Leave

When approved for COVID Sick Leave, the employee or his or her timekeeper (or equivalent) must submit time using the COVID Sick Leave time reporting code (“COVID Sick Leave”) for the day(s) that the employee is on approved leave.

Expiration of Leave

Eligibility for COVID Sick Leave will expire no later than December 31, 2020.

Use of intermittent leave for employees at a worksite

Employees who continue to work at a District government facility cannot use COVID Sick Leave intermittently for non-childcare related reasons. Once an employee begins COVID Sick Leave for non-childcare related reasons, the employee must continue to use COVID Sick Leave each day until the employee (1) uses the full amount of COVID Sick Leave or (2) no longer has a qualifying reason for using COVID Sick Leave.

By contrast, an employee may use intermittent COVID Sick Leave, by agreement with the agency, to care for his or her child whose school or place of care is closed, or whose child-care provider is unavailable, because of COVID-19 related reasons. Under these circumstances, intermittent COVID Sick Leave may be taken in hour or full-day increments.

Use of intermittent leave for employees teleworking

An employee may use COVID Sick Leave on an intermittent basis while teleworking if the agency permits it and the employee is unable to telework his or her normal schedule of hours due to one of the qualifying reasons to use COVID Sick Leave. The employee may take intermittent leave in hourly or full-day increments, with approval from his or her manager. For example, if the employee and manger agree on a 60-minute increment, the employee can telework from 1:00 PM to 2:00 PM, take leave from 2:00 PM to 3:00 PM, and then return to teleworking.

Regardless of whether an employee is teleworking or working at their physical site, DCHR encourages agencies and employees to collaborate regarding intermittent use of COVID Sick Leave in order to achieve flexibility and meet mutual needs.

While agencies have designated FMLA Coordinators to respond to COVID Sick Leave-related issues, other important points of contact in the FMLA process may include the agency timekeeper, Payroll Supervisor, or Quality Assurance Liaison. While the FMLA Coordinator can respond to general COVID Sick Leave-related concerns, timekeepers (and their equivalents) support FMLA Coordinators by responding to questions concerning time entries in PeopleSoft. Timekeepers also confirm that hours are entered in accordance with the program’s time reporting requirements (e.g., inputting the correct time reporting code(s)).

DCHR serves as the District Family and Medical Leave Coordinator for subordinate agencies and independent agencies with service agreements with DCHR. As such, DCHR provides agency FMLA Coordinators with guidance on the processing of COVID Sick Leave, as well as information concerning PFL, DCFMLA, and federal FMLA. The District FMLA Coordinator ensures that the program operates smoothly across the District government and maintains statistics on program usage. The District FMLA Coordinator also conducts a review of submitted and approved FML-04s.

For the above reasons, agency FMLA Coordinators are required to submit notices of ineligibility, letters denying leave, and FML-04s to DCHR via [email protected]. Once received, DCHR will follow-up with the agency FMLA Coordinator if additional information is required.

District government employees who qualify for and have been approved for leave under COVID Sick Leave are not entitled to receive premium pay for any hours(s) for which the employee receives COVID Sick Leave.

Records

Agency FMLA Coordinators are responsible for maintaining all applications, supporting documentation, and agency notifications and responses for each employee who submits a request for COVID Sick Leave. These records must be kept confidential and maintained in a sealed envelope separate from the employee’s official personnel folder (OPF) or in a secure electronic repository.

Confidentiality

Agency FMLA Coordinators that have access to employee information pertaining to COVID Sick Leave are responsible and accountable for safeguarding the integrity, security, and confidentiality of these records regardless of form. FMLA Coordinators must protect such records from unauthorized access, use, modification, destruction, or improper disclosure.

An employee who is unable to work because of the COVID-19 emergency may also be entitled to unpaid COVID-19 leave under DCFMLA during the period of the COVID-19 emergency. COVID-19 leave under DCFMLA can overlap with the COVID-19 sick leave benefit. For questions about how COVID-19 leave under DCFMLA can overlap with COVID-19 sick leave, please contact your FMLA Coordinator.

Authority

1. The Families First Coronavirus Response Act, Divisions C and E, Pub. Law 116-127, 134 Stat 178, enacted March 18, 2020;
2. COVID-19 Response Emergency Amendment Act of 2020, D.C. Act 23-247, § 102 (enacted March 17, 2020);
3. Declaration of Public Emergency: Coronavirus (COVID-19), Mayor’s Or. 2020-045 (dated March 11, 2020);
4. Human Resources Guidance for the COVID-19 Emergency (June Update), DCHR Iss. No. 2020-13 (June 2, 2020);
5. Families First Coronavirus Response Act, Questions and Answers, U.S. Dept. of Labor (last accessed July 14, 2020);
6. Paid Leave Under the Families First Coronavirus Response Act, 29 CFR §§ 826.10 – 826.160 (Eff. until Dec. 31, 2020).

Applicability

The provisions of this issuance apply to those District government agencies that are subordinate to the Mayor’s personnel authority. Other personnel authorities or independent agencies may adopt any or all of these procedures to provide guidance to employees under their respective jurisdictions.

Nothing in this issuance shall be construed to mandate COVID Sick Leave for employees that may be excluded pursuant to District or federal law. The District reserves the right to exercise such exclusions when necessary to maintain essential government operations and emergency services.

This issuance reflects revisions made on October 16, 2020. The revisions include changes to the definition of "health care provider" in the Agencies Providing Health Care and Emergency Response section.