On August 23, 2021, the District of Columbia (“D.C.”) Council enacted the Fiscal Year 2022 Budget Support Emergency Act of 2021 (D.C. Act 24-159), an omnibus bill that, at Title IV, Subtitle G, includes the “Universal Paid Leave Emergency Amendment Act of 2021” (the “PLEAA”). Beginning October 1, 2021, and applying to leaves of absence with approved leave dates that begin on or after September 26, 2021, this new law expands the employer-funded paid leave program in D.C., explained in detail in several of our prior publications and already one of the nation’s most expansive of its kind.
Specifically, the PLEAA amends the D.C. Universal Paid Leave Amendment Act of 2016, as well as the D.C. Family and Medical Leave Act of 1990, and other provisions related to paid leave for medical, prenatal, parental, and family care under the Paid Family Leave (“PFL”) program.
Prenatal and Pregnancy Loss Conditions to Qualify for Paid Leave
Previously, under the PFL program, eligible self-employed individuals and workers at covered employers could take up to eight weeks of parental leave, two weeks of personal medical leave, and six weeks of family leave to care for a sick family member, up to a combined maximum of eight workweeks of paid leave within a 52-workweek period. Generally, as we explained here, covered employers are nonprofit and for-profit private employers that pay D.C. unemployment insurance taxes for one or more employees, and their PFL-eligible employees are those who spend at least 50 percent of their work time in D.C. during a particular quarter.
As of October 1, 2021, eligible employees may now also take up to two workweeks of prenatal leave for newly added qualifying reasons, distinct from and in addition to parental leave that had already been available. Reasons for taking prenatal leave, involving prenatal care provided by a health care provider, include:
- routine and specialty appointments,
- treatments associated with a pregnancy,
- prenatal check-ups,
- treatment for pregnancy complications,
- bedrest that is required or prescribed by a health care provider, and
- prenatal physical therapy.
The PLEAA also amends the definition of a “qualifying medical leave event” for which personal medical leave may be taken to include:
- miscarriage (loss of a pregnancy before 20 weeks’ gestation), and
- stillbirth (loss of a pregnancy after 20 weeks’ gestation).
Changes to Maximum Leave Duration
The PLEAA increases the potential duration of qualifying paid leave starting on October 1, 2021, until September 30, 2022, when the following maximum durations for qualifying leaves will be available to eligible workers:
|Nature of Leave||Max. Duration|
|(as explained above)|
|Parental||8 workweeks||(as before)|
|Medical||6 workweeks||(increased from 2 weeks)|
|Family||6 workweeks||(as before)|
The combined maximum number of workweeks of paid leave within a 52-workweek period remains 8 weeks, except when an individual takes both parental leave (up to 8 weeks) and prenatal leave (up to 2 weeks), in which case the individual can take up to 10 weeks of combined leave.
Starting in 2022, the maximum duration of leave available under the PFL program may be modified annually depending upon the projected balance of the Universal Paid Leave Fund taking into account the planned paid leave benefit expansions. So long as the projected balance of the Universal Paid Leave Fund does not fall below the equivalent of nine months of benefits at the next planned level of expanded benefits, paid leave benefits will be expanded for that year as of July 1 according to a priority list. Under this provision, depending on the availability of funds, the maximum duration of qualifying leaves could include any or all of the following expanded benefits:
- Up to 2 weeks for prenatal leave
- Up to 12 weeks for medical leave
- Up to 12 weeks for parental leave
- Up to 12 weeks for family leave
If leave benefits are expanded to the maximum durations listed above, then the employer contribution rate may also be lowered in the future depending on the projected balance of the Universal Paid Leave Fund.
On the other hand, the maximum leave allowed could also be cut back, although not below the floor of durations available prior to October 1, 2021. Thus, paid medical leave could be cut back to the present maximum of two weeks, and paid prenatal leave could be merely a temporary benefit.
Expanded Benefits: Waiting Period Waiver, Retroactive Claims, Worker-Friendly Calculation of Wages Subject to Employer Contribution, and Higher Paid Amounts
The amendments in the PLEAA include a temporary suspension of the PFL’s one-week waiting requirement before workers are eligible for benefits after a qualifying event. This requirement will be waived for claims filed after October 1, 2021, and before the one-year mark after the COVID-19 public health emergency is ended.
The PLEAA also adds new provisions to PFL, allowing eligible individuals to receive paid leave benefits retroactively if claimed within 30 days. The 30-day limitation may be waived, however, when “exigent circumstances” prevent the individual from submitting the claim in time. Such exigent circumstances include:
- physical or mental incapacity;
- a demonstrable inability to reasonably access the means by which a claim could have been filed; or
- actual lack of knowledge by an eligible individual of his or her right to apply for paid leave benefits due to the noncompliance of all of the eligible individual’s covered employers with PFL notice requirements, provided that such employer noncompliance is confirmed by the D.C. mayor.
Another provision in the PLEAA expands the wages subject to contribution for claims filed after October 1, 2021, until one year after the end of the COVID-19 public health emergency. The temporary change requires the calculation of an eligible individual’s average weekly wage subject to contribution to be based upon the four quarters with the highest wages from the preceding 10 quarters (rather than the usual five).
Finally, while not part of the PLEAA, but rather part of the original PFL program, employers should recall that the maximum weekly benefit amount for paid leave is going up, based on an increase to the Consumer Price Index. The D.C. Office of Paid Family Leave announced that claims with approved leave dates that begin on or after September 26, 2021, are subject to an increased maximum weekly benefit, raised from $1,000 to $1,009.
The PLEAA expressly provides that the D.C. mayor must issue implementing rules by October 31, 2021, or after any expansion of benefits or change to the employer contribution rate. Additionally, by the late fall of 2021, the D.C. Department of Employee Services will make available an updated PFL poster, which all D.C. employers will be required to post by February 1, 2022. We will provide further insight when such rules or other guidance materials are released.
As emergency legislation, the PLEAA will expire after 90 days (November 21, 2021), unless renewed. However, identical amendments to the PFL program are included in the “regular” Fiscal Year 2022 Budget Support Act (B24-0285) (“Budget Support Act”) that would make the amendments set forth in the PLEAA permanent. The Budget Support Act is currently pending Congressional review, as required under D.C.’s Home Rule Act, but is expected to remain unchanged and take effect in January 2022.
What D.C. Employers Should Do Now
- Review policies and modify them as needed to incorporate the new and revised PFL provisions.
- Train human resources personnel as necessary to make sure they are able to respond appropriately to inquiries regarding prenatal PFL as well as expanded benefits provided by the new law.
- Ensure compliance with the PFL program’s requirements about notice posting (as detailed in our prior publication). See the PFL Information for Employers website for information and the PFL resource page for downloadable revised notices, FAQs, and other materials.
- Watch for news about expected guidance for implementation of the new PFL provisions.
- Monitor the D.C. Council for a likely extension of the PLEAA in November, prior to the identical amendments taking effect under the Budget Support Act in January 2022.
For more information about this Insight, please contact:
|Nathaniel M. Glasser|
|Ann Knuckles Mahoney|
|Eric I. Emanuelson, Jr.|
 As explained later in this Insight, the prenatal leave benefit will not necessarily be available from year to year.