Family and Medical Leave (2020 Update)

I-2020-17


Effective Date: Expiration Date: Chapters:
Aug. 25, 2020 When Superseded 12  

Overview

The District of Columbia government provides employees with an opportunity to attend to a family or medical-related need by using leave under the federal and District of Columbia Family and Medical Leave Acts. This issuance outlines the Family and Medical Leave programs, explains the application process, and provides guidance to subordinate agencies (including independent agencies with service agreements with the D.C. Department of Human Resources (DCHR)) on processing those applications so that an eligible employee may take full advantage of this important benefit.

NOTE: This issuance supersedes DPM Issuance No. 12-42, Family and Medical Leave, effected April 7, 2016. This issuance provides guidance on the new COVID-19 Leave category provided under the District of Columbia Family and Medical Leave Act (DCFMLA).

Family and Medical Leave

Every two years, District government employees may be eligible for up to 32 workweeks of combined family and medical leave under the DCFMLA and up to 12 workweeks per year of combined family and medical leave under the federal Family and Medical Leave Act (collectively FMLA). District employees may also be eligible for additional leave to care for a military family member who has been injured in the line of duty. As FMLA is unpaid leave, an employee may use accrued annual, sick, paid leave (under the paid family leave program) or compensatory time in conjunction with FMLA.


Qualifying for FMLA

D.C. Family Leave

Under the DCFMLA, a District employee may qualify for “family leave.” Qualified employees are entitled to up to 16 workweeks of family leave every two years.

To qualify for DCFMLA Family Leave, an employee must:

  1. Be an employee of the District of Columbia government with:
    1. At least one year of continuous service;
    2. Have received compensation for at least 1,000 hours in the last 12 months immediately preceding the leave (including hours worked or compensated by annual, sick or other paid leave); and
    3. Has not exhausted the allowable 16 weeks of family leave over the last 24 months.
  2. Have experienced (or will experience) any of the following qualifying events:
    1. The birth of a child;
    2. The placement of a child with the employee for adoption or foster care, or other permanent assumption of parental responsibilities for a child; or
    3. The need to provide care for a family member with a serious health condition.
  3. Submit a “Family and Medical Leave Application Form”. (See Attachment 1). For the birth or placement of a child, the application must be submitted within 12 months of the qualifying event.

D.C. Medical Leave

Under DCFMLA, a District employee may qualify for “medical leave.” Qualified employees are entitled to up to 16 workweeks of medical leave every two years.

To qualify for DCFMLA Medical Leave, an employee must:

  1. Be an employee of the District of Columbia government with:
    1. At least one year of continuous service;
    2.  Have received compensation for at least 1,000 hours in the last 12 months immediately preceding the leave (including hours worked or compensated by annual, sick or other paid leave); and
    3. Has not exhausted the allowable 16 weeks of medical leave over the last 24 months.
  2. Be (or will become) unable to perform their duties due to a serious health condition; and
  3. Submit a “Family and Medical Leave Application Form.” (See Attachment 1).

Federal Family and Medical Leave

Under federal law, a District employee may qualify for up to 12 workweeks of leave per year. Any qualifying leave under DCFMLA may count against the federal leave entitlement. To qualify for leave (family or medical) under federal FMLA, an employee must:

  1. Be an employee of the District of Columbia government with:
    1. At least one year of service; and
    2. Have actually worked for at least 1,250 hours in the last 12 months.
  2. Have experienced (or will experience) any of the following qualifying events:
    1. A serious health condition, which prevents the employee from carrying out their duties;
    2. The birth of a child of the employee;
    3. The placement of a child with the employee for adoption, foster care, or for whom the employee permanently assumes and discharges parental responsibility; or
    4. The need to provide care for a family member who has a serious health condition;
  3. Submit a “Family and Medical Leave Application Form.” For family leave (the birth or placement of a child), applications must be submitted within one year of the qualifying event. (See Attachment 1).

Military Family and Medical Leave

Under federal law, a District employee may also qualify for up to 12 workweeks of military exigency leave and up to 26 workweeks of military family caregiver leave per year. Federal military family leave may count against an employee’s DCFMLA in some circumstances, but not in others.

To be approved for leave under military provisions of federal FMLA, an employee must:

  1. Be an employee of the District of Columbia government with:
    1. At least one year of continuous service; and
    2. Have actually worked for at least 1,250 hours in the last 12 months.
  2. Have experienced (or will experience) any of the following qualifying events:
    1. To assist a family member1 because of a qualifying exigency provided in 29 C.F.R. § 825.126 arising out of the fact that the family member is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status  (for up to 12 workweeks per year); or
    2. To provide care to a family member who suffers a serious health condition as a result of active military duty (for up to 26 workweeks per year).
  3. Submit a “Family and Medical Leave Application Form.” All applicants must submit a Family and Medical Leave Application Form (see Attachment 1).
NOTE: The term "family member" refers to the eligible employee's spouse, son, daughter, parent, or "next of kin" of a covered veteran with a serious injury or illness.

COVID-19 Leave (DCFMLA)

In May 2020, the Council for the District of Columbia amended DCFMLA to create a new COVID-19 Leave entitlement for use during the public health emergency. District government employees who are eligible for COVID-19 Leave may qualify for up to 16 workweeks of unpaid leave. Upon the end of the public health emergency, the employee’s COVID-19 Leave will terminate even if the employee has not exhausted their 16-week entitlement. COVID-19 Leave provided by DCFMLA should not be confused with the paid COVID Sick Leave benefit. An employee may be eligible for both COVID-19 Leave and COVID Sick Leave. For more information about the paid COVID Sick Leave benefit, please see issuance I-2020-11, COVID-19 Sick Leave.

To be approved for COVID-19 Leave under DCFMLA during the public health emergency, an employee must:

  1. Have worked for District government for at least 30 days;
  2. Meet any of these qualifying events:
  1. Care for Self. A healthcare provider recommends the employee quarantine or isolate because they have COVID-19, or because the employee or a member of their household is at high risk for serious illness from COVID-19;
  2. Care for Family or Household Member. The employee needs to care for a family member or member of the employee’s household due to a government or healthcare provider quarantine or isolation order; or
  3. Childcare Closure. The employee needs to care for a child whose school or childcare facility is closed, or childcare provider is unavailable.
NOTE: COVID-19 Leave does not count against an employee’s traditional 16 weeks of family and 16 weeks of medical leave under DCFMLA. To see an overview of entitlements relating to common COVID-19 eligibility scenarios, please refer to the attached chart.

Employment Entitlement

Under the DCFMLA and the federal FMLA (or applicable provisions of a negotiated collective bargaining agreement), upon return from family or medical leave, an employee:

  1. Shall be restored to the position he or she held when the family or medical leave commenced; or
  2. Shall be restored to an equivalent position if the position held by the employee when the family or medical leave commenced is no longer available.

Provisions in Chapter 16 (District of Columbia Family and Medical Leave Act) of Title 4 of the D.C. Municipal Regulations address instances when restoration of employment may be denied.


Applying for Leave

District government employees may apply for and use family and medical leave by:

  1. Completing a Family and Medical Leave Application Form (Attachment 1);
  2. Obtaining any documents required to establish eligibility;
  3. Submitting the completed application and supporting documents to their Family and Medical Leave Coordinator; and
  4. If approved, selecting the appropriate time reporting code (TRC) on their timesheet.

Family and Medical Leave Application

To be approved and designated for any family or medical leave program, an employee must fill out and submit a “Family and Medical Leave Application Form.” On the form, the employee must provide their personal information, the reason for the leave request, the total number of hours requested, and the type(s) of paid leave that will be used, if any.

Only one application is needed for each program type (medical, family or military exigency.) However, program types cannot be combined on one application. For example, medical and family leave cannot be combined on the same application. A separate application is required for each of the following program types:

  1. Family Leave. Employees may combine federal family leave, DC family leave, paid family leave and military family caregiver leave on one application.
  2. Medical Leave. Employees may combine federal medical leave and DC medical leave on one application.
  3. Military Exigency Leave. Employees must submit a separate application for this program.
  4. COVID-19 Leave. Employees may combine COVID-19 Leave, COVID-19 Sick Leave, FMLA Leave, and DCFMLA Medical Leave on one application.
NOTE: While separate applications may be required, employees should always use the Family and Medical Leave Application Form (See Attachment 1). Employees may submit more than one application for family or medical leave but will only receive one leave entitlement for the qualifying period. For example, if an employee submits two applications for the care of a family member, the employee can only receive a maximum of 640 hours. 

Submission of Proof of Eligibility

In addition to the Family and Medical Leave Application Form, an employee must also submit supporting documentation that establishes the qualifying event for eligibility. Acceptable supporting documents may include the following:

  1. For an employee’s own serious health condition, a completed “Certificate of Health Care Provider for Employee’s Serious Health Condition” (DOL Form WH-380-E);
  2. For the care of a family member with a serious health condition, a completed “Certificate of Health Care Provider for Family Member’s Serious Health Condition” (DOL Form WH-380-F); and government or other reasonable documentation requested by the agency to establish the family relationship;
  3. For the birth of the employee’s child, a certificate of live birth, or similar government (or other legal) document, listing the employee as a legal parent;
  4. For the legal placement of a child with the employee, a certified copy of a court order granting the employee legal custody of the child;
  5. For the non-legal placement of a child with the employee, 
    1. Two official records establishing the employee as the named caregiver of the child (e.g. school enrollment, insurance records, or medical records); and
    2. Reliable documentation establishing the date when the placement occurred (e.g. insurance records and certificate of death);
  6. To assist a military member due to a qualifying exigency, a completed “Certificate of Qualifying Exigency for Military Family Leave” (DOL Form WH-384);
  7. For the care of a military member’s duty-related serious health condition, a completed “Certification for Serious Injury or Illness of a Covered Servicemember for Military Family Leave” (DOL Form WH-385); or
  8. For the care of a military veteran with a serious health condition, “Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Family and Medical Leave Act)” (DOL Form WH-385-V).
  9. For COVID-19 Leave, agencies may require reasonable certification of the employee’s need for COVID-19 Leave. For COVID-19 Leave related to an employee or an employee’s family member or an individual who resides with the employee, agencies may request certification of the need for leave. Certification may include a signed, dated statement from a healthcare provider stating that the employee has such need and how long the employee needs leave. For COVID-19 Leave related to childcare, agencies may require a statement by the head of the school, place of care, company, or childcare provider stating such closure or unavailability. These statements may include a printed statement obtained from the organization or provider’s website.
NOTE: It is the employee’s responsibility to provide sufficient documentation to establish a qualifying event. If an employee fails to provide adequate evidence of a qualifying event, including the necessary family relationship, the request will be denied.

Submitting the Application and Documentation

An employee must submit their application and supporting documentation to their agency Family and Medical Leave Coordinator. If the supporting documentation is not available at the time of application, an employee may be conditionally approved and submit the supporting documents up to four (4) weeks later. See the note shown below on “Conditional Applications” for more details. The Family and Medical Leave Coordinator will evaluate the application materials and notify the employee if they qualify for DCFMLA or any federal FMLA program.

A District government agency may provide a health care provider with a statement of the employee’s essential functions for the purpose of more clearly certifying the work-related functions the employee is unable to perform.

NOTE: Conditional Applications. Supporting documentation may not always be available prior to applying for leave. For example, an employee may apply for leave for an anticipated adoption, but the court will not issue the custody order in advance. In those cases, the agency may approve an application conditionally, and the supporting documentation must be supplied to the agency no more than four (4) weeks following the submission of the application form. If supporting documentation is not received within the four (4) weeks, the application for leave may then be denied and the employee will be liable for any related leave that was conditionally approved.

Serious Health Condition

Under FMLA, an employee may be entitled to leave as a result of their own serious health condition, or that of a family member. A serious health condition includes:

  • Inpatient Care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider;
  • Incapacity;
  • Pregnancy and Prenatal Care;
  • Chronic Serious Health Conditions;
  • Treatment Related to an Incapacity;
  • Treatment to Prevent Incapacity; and
  • Restorative Surgery Following an Injury.

Inpatient Care

A medical or mental health condition will qualify as a “serious health condition” when it involves inpatient treatment of one or more nights in a hospital, hospice, or residential health care facility.

Incapacity

A period of incapacitation of more than three consecutive days qualifies as a “serious health condition.”

Pregnancy and Prenatal Care

Incapacity due to pregnancy and prenatal care qualifies as a “serious health condition.”

Chronic Serious Health Conditions

Incapacitation or treatment for incapacitation from a chronic serious health condition qualifies for FMLA. A chronic serious health condition is a condition that:

  1. Requires periodic visits. Periodic visits means at least two visits per year under the supervision of a healthcare provider;
  2. Continues over an extended period of time. This includes recurring episodes of a single underlying condition; and
  3. May cause episodic incapacity (such as asthma, diabetes and epilepsy).

Treatment-Related Incapacity

Treatments following an incapacitation of three or more days qualifies as a “serious health condition” if:

  1. Two or more treatments are required;
  2. The first treatment occurs within 10 days of the incapacity; and
  3. The subsequent treatments occur within 30 days of the incapacity.

Treatment to Prevent Incapacity

Any period of absence to receive multiple treatments under order by a healthcare provider (including recovery time) qualifies as a “serious health condition” if the treatments are for a condition that would likely result in incapacity of three or more days, absent the treatment.

Restorative Surgery Following an Injury

Restorative surgery (and recovery) qualifies as a serious health condition if it is related to an accident or other injury. (Plastic and other elective surgeries are excluded.)


Employee Action if Approved for FMLA

Using Approved Leave

If approved for family or medical leave, the employee or their timekeeper (or equivalent) must submit appropriate leave requests utilizing the leave approval process established by the agency. For instance, leave may be requested through PeopleSoft or through the submission of the D.C. Standard Form (DCSF) No. 71, Application for Leave (or an equivalent form).

Once leave is approved, the employee, or their timekeeper, must report the time correctly on the employee’s timesheet. In the event PeopleSoft is used, employees should be aware of the appropriate TRCs to be used (as shown in the table below). As TRCs may differ from agency to agency than those shown in the table, employees should contact their agency timekeeper (or equivalent) to obtain further guidance on entering time in the PeopleSoft system.

Requesting Leave Through E-Time (PeopleSoft)
Program Pay Status TRC To Use
DCFMLA Family or DCFMLA Medical; and Federal FMLA Leave Without Pay FMLW
FMLA + Annual Leave FMAL
FMLA + Sick Leave FMSK
FMLA + Compensatory Time FMCMP
FMLA + Paid Family Leave PFL-T

FMLA Coordinator

Family and Medical Leave applications must be submitted to and processed by the agency assigned FMLA Coordinator.

Agency Family and Medical Leave Coordinators are appointed by each agency head. Each agency is responsible for ensuring its coordinator(s) have been employed with the District government for at least 5 years, have significant experience or has been trained in Family and Medical Leave procedures. Agencies are also responsible for ensuring their employees are informed of the name and contact information of the coordinator(s).

In an effort to avoid a potential conflict of interest, an agency head may not serve as the FMLA Coordinator for their agency.


Determining Program Eligibility

As indicated in this instruction, employees must meet various eligibility requirements in order to be approved for FMLA.

The agency FMLA Coordinator is responsible for determining all the programs (e.g., D.C. family leave, D.C. medical leave, federal FMLA, paid family leave) for which an employee is eligible. The FMLA Coordinator must make a determination of eligibility upon collection and review of the following information from personnel records:

    • The nature of the employee’s appointment;
    • The employee’s total length of service with the District government;
    • The total number of compensable hours for the last 12 months (usually 2080);
    • The total number of regular hours paid to the employee in the last 12 months;
    • If the employee was previously approved for DC or federal FMLA for another qualifying event, the first date of leave for that event;
    • The total number of hours of family and medical leave used combined 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 (See Attachment 2) and the eligibility letter will guide the coordinator in determining which family and medical leave program(s) the employee qualifies.


Processing Applications

General Procedures for Processing Applications

Family and Medical Leave Coordinators must process Family and Medical Leave Application forms, as follows:

  1. Notice of Eligibility. Within five (5) days of receiving any application, a notice of eligibility must be forwarded to the applicant. (See Attachment 2). The coordinator shall also issue a Notice of Eligibility to an employee if the employee has been absent for a period of three (3) or more days for family or medical reasons but has not yet applied. To carry out this step, the coordinator must determine eligibility, draft the notice, and issue the notice to the employee.
  2. Notice of Leave Designation. Within five (5) days of receiving necessary documentation, a Notice of Leave Designation form must be issued to an applicant to determine whether he or she qualifies for the requested leave. If the employee fails to return any required documentation, the leave request must be denied no later than twenty-eight (28) days after issuing the eligibility letter. The Notice of Leave Designation letter informs an employee whether their leave has been: (a) approved, (b) deferred because more information is needed, or (c) not approved. FMLA Coordinators must designate employees for all programs for which they are qualified (See Attachments 3, 4, 5 or 6). Copies of any decisions not approving leave must be forwarded to DCHR.
  3. Approval Notifications. Once an application has been approved, an approval notification (See Attachment 6) must be sent to multiple parties (see the notation box below) to ensure they are aware that the leave has been approved and to make certain that the appropriate leave (e.g., annual, sick, etc.) is being used in conjunction with FMLA, if appropriate. In the notification letter, the coordinator shall again designate the employee for all the programs for which he or she is eligible and qualifies and, if possible, indicate the total number of hours or weeks of program leave that will be used.
  4. Deferred Notifications. Whenever an employee’s supporting documentation is insufficient to establish a qualifying event, a designation letter deferring a decision should be issued using the “Deferred” designation letter template (See Attachment 4). In this letter, the coordinator should explain what documentation is lacking, what additional information is needed to complete the approval process, and the time period in which the employee must submit the additional information.
  5. Not Approved Notification. The coordinator will issue a “Not Approved” designation (See Attachment 5) if the event being used to apply for leave does not qualify for any family or medical leave program. In this case, the coordinator will issue a designation letter using the “Not Approved” designation letter template. Copies of “Not Approved” letters must be sent to dchr.fmla@dc.gov.
  6. Upload Documents. Once the entire process concerning an application has been completed (such as an approval, denial, etc.), agency FMLA Coordinators must upload all documentation received concerning a FMLA request (e.g., applications, eligibility forms, medical certifications, etc.), to DCHR. Coordinators must complete this step by uploading the documents to the DCHR SharePoint server at: http://dchr.sp.dc.gov/policy/PCA/FMLA/Applications.
NOTE: All documentation submitted by employees in relation to the FMLA (e.g., application, medical documentation, etc.) must remain confidential (see ‘Records, Confidentiality and Reporting” section in this instruction). The DCSF No. FML-04 (Form 4), Approval Notification, is the only document that may be disseminated to appropriate personnel, as identified on the form.

Issuance of Notification

After the coordinator completes their review of the application and supporting documentation, he or she shall issue the notice of eligibility to the employee. The notice must be delivered to the employee at their address of record by commercial courier with tracking. The tracking number must be printed on the notice. If the employee is being notified that he or she is not eligible, a copy of the notification must be submitted to DCHR at dchr.fmla@dc.gov.


Alternative Work Schedules

An agency and employee may agree to an alternative work schedule to accommodate either intermittent or reduced schedule family or medical leave. Though the schedule may be later modified, alternative work arrangements shall be established during the family or medical leave application process and shall be in writing. Any changes to such agreements must also be in writing.


Records, Confidentiality, and Reporting

Record keeping is vital for continuity of District operations and to analyze District trends as it relates to family and medical leave.

General Record Keeping Requirements

Agency Family and Medical Leave Coordinators shall maintain individual case records, separate and apart from an employee’s Official Personnel Folder, for each FMLA application. Each file shall contain the following:

  1. Family and Medical Leave Application;
  2. Eligibility determination notice;
  3. Designation notice;
  4. Approval notifications; and
  5. Any correspondence to or from the applicant.

Confidentiality

Agency FMLA Coordinators are responsible and accountable for safeguarding the integrity, security, and confidentiality of all program related records, regardless of form. FMLA Coordinators must protect such records from unauthorized access, use, modification, destruction, or improper disclosure in accordance with applicable regulations in Chapter 31A (Records Management and Privacy of Records) of Subtitle B of Title 6 of the D.C. Municipal Regulations.

Annual Reporting

By the end of each fiscal year, agency FMLA Coordinators shall provide DCHR a report of FMLA program activity upon request. Each report shall list each application received and, for each, provide:

  1. Application date;
  2. Eligibility determination date;
  3. Designation date;
  4. Nature of leave designations;
  5. Start and end date of approved leave;
  6. Total number of approved hours of leave;
  7. Whether the leave was approved on an intermittent basis;
  8. The salary of the employee;
  9. Temporary cost (if any) to replace the applicant while he or she was on leave; and
  10. Any denials for FMLA leave.

References

  1. D.C. Code § 32-501 et seq. (District of Columbia Family and Medical Leave Act);
  2. Title 4, Chapter 16 of the District of Columbia Municipal Regulations;
  3. The Family and Medical Leave Act of 1993, approved August 5, 1993 (29 U.S.C. § 2611 et seq. and 29 C F.R. §§ 825 et seq. (2000)), as amended; and
  4. The Coronavirus Support Clarification Emergency Amendment Act of 2020, enacted July 7, 2020 (D.C. Act 23-332).
  5. The Coronavirus Support Congressional Review Emergency Amendment Act of 2020, enacted June 8, 2020 (D.C. Act 23-328).

Attachments

  1. Attachment 1- FML-01 - Family and Medical Leave Application
  2. Attachment 2 - FML-02 - Eligibility Notification
  3. Attachment 3 - FML-03 - Approval Designation Letter
  4. Attachment 4 - FML-3D - Deferred Letter
  5. Attachment 5 - FML-3N - Not Approved Designation Letter
  6. Attachment 6 - FML-04 - Approval Notification
  7. Attachment 7 - Requesting COVID Sick Leave in PeopleSoft (Guide)
  8. Attachment 8 - COVID Sick Leave Poster (for agency posting)
  9. Attachment 9 - WH1422 - U.S. Dept. of Labor FFCRA Poster (for agency posting)
  10. Attachment 10 - Families First: Employee Paid Leave Rights (U.S. DOL)
  11. Attachment 11 - U.S. DOL - Employee’s Guide to FMLA
  12. Attachment 12 - COVID-19 Eligibility Scenarios

Issued by Ventris C. Gibson, Director D.C. Department of Human Resources on Aug. 25, 2020, midnight