ERIC Submits Comments on DC Paid Leave Rulemaking

May 4, 2018

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Dr. Unique N. Morris-Hughes
Interim Director
The District of Columbia Department of Employment Services
4058 Minnesota Avenue NE
Washington, DC 20019

Dear Interim Director Morris-Hughes,

The ERISA Industry Committee (ERIC) appreciates the opportunity to comment on the Department of Employment Services’ (DOES) proposed rules implementing the Universal Paid Leave Amendment Act of 2016 (UPLA), D.C. Law 21-264; D.C. Official Code § 32-541.01 et seq.

  1. ERIC’S INTEREST IN THE RULEMAKING

ERIC is the only national association that advocates exclusively for the nation’s biggest employers to create the best-possible policy environment for health, retirement, and compensation plans at the federal, state, and local levels. ERIC gives voices to its members’ priorities and shape policy before it shapes them. ERIC seeks to maintain its members’ ability to provide consistent, uniform paid sick leave policies by advocating in favor of regulations that enable employers to retain flexibility in designing their policies.

  1. SUMMARY OF ERIC’S COMMENTS

Below is a summary of ERIC’s comments, with greater detailed provided subsequently:

  1. Eligible individuals should not be able to receive paid-leave benefits under the UPLA if they are already receiving equal benefits under a covered employer’s short-term disability or other paid leave plan;
  2. Eligible individuals should only be able to receive the difference between what they are receiving as short term disability benefits and their regular salary as UPLA benefits; and
  3. The definition of who is an “eligible individual” should be amended to establish a minimum amount of time that a covered employee must work for a covered employer in a 52-week period.
  1. DISCUSSION
  1. Relationship to Other Benefits

Most of the country’s largest employers, ERIC members specifically, already provide generous paid leave benefits. Whether they are identified as paid medical, paid family, paid parental, or short and long-term disability, the benefits provided to employees are the same. Under the Proposed Regulations, as currently drafted, eligible individuals could receive up to double the amount of leave for certain qualifying events. Under the section entitled, “Relationship to Other Benefits,” the rules provide for the following: “An eligible individual receiving short-term disability payments shall be eligible to receive paid-leave benefits under this chapter.” (This is not the same, however, for long-term disability payments and provides no direction as to how other paid benefits are treated.)

In application, this would, for example, allow employees of an employer that provides 8 weeks of paid parental leave to care for a new child to take a total of 16 weeks of leave. That would be 8 weeks from under the employer’s plan and 8 weeks from under UPLA. This runs against the provision in the Proposed Regulations that individuals not be able to “receive more than a maximum of eight workweeks of paid leave.” Rather than allowing an eligible individual to stack leave from different sources, the alternative should be to have paid leave run concurrently as it pertains to the same qualifying event. To this end, ERIC respectfully requests that the following language be added as a new Section 3414.6:

Employers may require that leave taken under this chapter be taken concurrently and be coordinated with leave benefits provided under a collective bargaining agreement, other District of Columbia laws, or employer policy providing paid leave benefits for the same purposes. At no point shall an employee receive greater leave than the number of weeks of leave available under the most generous of the various leave programs available.

Furthermore, employees should not receive more than their full salary or wage through benefits provided under this chapter. This is especially true when it is solely the employers who are contributing to the Universal Paid Leave Implementation Fund. The benefits under UPLA should only be guaranteed when it is used to bridge the gap between an employer’s disability plan and the individual’s full salary. To this end, ERIC respectfully requests that the following language be added to Section 3414.5:

An eligible individual receiving short-term disability payments shall be eligible to receive paid-leave benefits under this chapter if the eligible individual is receiving less than their full salary under a covered employer’s short-term disability plan, and to the extent necessary to receive the difference between the two and bring the benefits up to the eligible individual’s full salary. However, at no time is an employee eligible to receive more than their salary through the combination of a covered employer’s short-term disability benefits and paid-leave benefits under this chapter.

  1. Definition of an “Eligible Individual”

Clear, concise definitions are crucial for uniformity and ensuring complete compliance. Under the Proposed Regulations, the definition of an “eligible individual” is someone who is a covered employee “during some or all” of the previous year preceding a qualifying event that requires the employee to take leave from work. With this language, there is no clear floor or minimum that can be derived from use of the word “some.” Some implies more than one but less than all. The current language would therefore allow individuals who have worked for differing amounts of time for a covered employer to reap the same benefits. ERIC understands the District of Columbia’s and DOES’s mission to provide paid leave to all, but there must be a standard that ensures proper compliance. To this end, ERIC respectfully requests that subparagraph (a) of the definition be amended to the following:

“Eligible individual” – means a person whose claim for paid-leave benefits is not based on employment for the United Sates, the District of Columbia, or an employer that the District of Columbia is not authorized to tax under federal law or treaty, who meets the requirements of the Act and this chapter and: (a) Has been a covered employee for at least 26 weeks of the fifty-two (52) calendar weeks immediately preceding the qualifying event for which paid leave is being taken;

ERIC again appreciates the opportunity to comment on the Proposed Rules. We welcome the opportunity to work with DOES in ensuring that the final rules benefit employees without increasing unnecessary burdens on employers. If you have any questions concerning the above comments, or if we can be of further assistance, please contact me at bhum@eric.org or (202) 627-1917.

Sincerely,

Bryan Hum
Senior Associate, Retirement & Compensation Policy