Effective October 1, 2021, many workers in the District of Columbia now have available to them expanded paid medical, parental, and family leave benefits under the District's Paid Family Leave ("PFL") program, thanks to the Universal Paid Leave Emergency Amendment Act of 2021 ("PLEAA"). The expansion, currently enacted as emergency legislation, is temporary and set to expire on November 21, 2021, unless renewed. But the DC City Council is aiming to make the enhanced benefits permanent by including nearly identical provisions in the Fiscal Year 2022 Budget Support Act ("Budget Support Act"), which is currently under review by Congress. Since the Budget Support Act is expected to remain unchanged and take effect in January 2022, employers in the District should understand the expanded benefits available to their employees and their obligations under the PLEAA.
Prenatal Care and Pregnancy Loss
Prior to the passage of the PLEAA, eligible individuals were entitled to 2, 6, or 8 workweeks of paid parental, personal medical, and family care leave, respectively, up to a combined total of 8 workweeks of paid leave within a 52-workweek period. Under the expansion, eligible individuals are now additionally entitled to up to 2 workweeks of paid prenatal care leave for the following new qualifying reasons:
- routine and specialty appointments, exams, and treatments associated with a pregnancy provided by a health care provider, including prenatal check-ups and ultrasounds;
- treatment for pregnancy complications;
- bedrest that is required or prescribed by a health care provider; and
- prenatal physical therapy.
The paid prenatal care leave made available by the PLEAA is separate from, and in addition to, paid parental leave benefits that are already available under the PFL program.
Eligible individuals are also now entitled to take paid personal medical leave for medical care related to miscarriage (defined as loss of a pregnancy before 20 weeks' gestation) and stillbirth (defined as loss of a pregnancy after 20 weeks' gestation).
Expanded Duration of Paid Leave
For claims with approved leave dates that begin on or after September 26, 2021, through September 30, 2022, the PLEAA increases the maximum duration of qualifying paid leave. Under the expansion, up to 6 workweeks of paid personal medical leave can be taken, up from 2 workweeks before the PLEAA. Paid parental and family care leave maximums remain at 8 workweeks and 6 workweeks, respectively. Although eligible individuals are generally still limited to 8 workweeks of paid leave within a 52-workweek period, individuals who take both parental and prenatal leave can take up to 10 workweeks of combined paid leave over the same period.
Beginning in 2022, and going forward, the maximum durations of paid leave available under the PFL program may be annually increased or decreased depending on the projected balance of the Universal Paid Leave Fund and other fiscal considerations. In any event, these annual changes cannot drop the paid leave durations below pre-PLEAA levels.
Expanded Period for Calculating PFL Contribution Wages
For claims filed after October 1, 2021, but before the 365th day after the end of the COVID-19 public health emergency that began on March 11, 2020, the PLEAA expands the wages that are subject to PFL calculation. Now, an individual's average weekly wage will be based on the four quarters with the highest wages from the preceding 10 quarters, up from the preceding 5 quarters.
No Mandatory Waiting Period
Prior to the PLEAA, individuals became eligible for PFL benefits after one week following a qualifying event. The PLEAA temporarily suspended this waiting period for claims filed after October 1, 2021, but before the 365th day after the end of the COVID-19 public health emergency.
The PLEAA allows eligible individuals to receive PFL benefits retroactively if a claim for benefits is made within 30 calendar days after the qualifying leave event. This 30-day limitation may be waived in instances where "exigent circumstances" prevent the individual from submitting their claim in time. Exigent circumstances include physical or mental incapacity, a demonstrable inability to reasonably access the means by which a claim could have been filed following the qualifying leave event, or actual lack of knowledge by an individual of their right to apply for benefits due to their employer(s)'s noncompliance with PFL notice requirements.
Employers will be required to post in the workplace a forthcoming updated PFL poster. The District's Department of Employment Services expects to make the revised poster available by late fall 2021. Employers must post the notice by February 1, 2022.
* Zachary Silver is currently admitted to practice in New York. He is not admitted in the District of Columbia and is currently practicing under the supervision of Venable LLP partners admitted in the District of Columbia.