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How the Di strict of Columbia Differs From
Virginia. Maryland. and Most other States
By Lawrence P. Postol
T
he Vv'ashington mcrfopolit:m area falls under
rhe jurisdiction of three sets ofbws. For those
to the north of the District of Columbia,
Maryland law applies; for those to the south,
Virgini;t law applies. And for that square in the middle,
the District has its own set ofl:nvs.
For human resources professionals and employmenr
lawyers, it can be a headache to become knowledgeable
of employment laws for all three jurisdictions. While
Maryland and Virgi nia laws arc very similar to fcdcr:ll
law, the District is much more protecti ve of employees
and places more burden on employers. Among the three
jurisdi ctions, the three main differences come down to
the District's Family and Medical Leave Act (FMLA),
paid sick leave, and expanded classes of persons protected
from discrimination.
First, the District has its own set of 1:lws pertaining
to FMLA. whereas i'vlaryland and Virginia rely exclu-
sively on the federal acr. While both the federal and
D.C. FM LA require one year of service for eligibility,
the other requirements and the benefits t hemselves dif-
fer considerably. Federal FMLA appli es to employers
wi th 50 or more employees; the employee must have
worked 1,250 hours ( 0 and the benefi t is 12
weeks of combined unpaid family and medi cal leave
every year. On the other hand, D.C. FMLA requires
an employer to have only 20 employees. The employee
must have rendered 1,000 hours of service to be el igible
for bcnefirs-16 weeks of unpaid family leave every two
years and another 16 weeks of met/ira/leave every I"\VO
years. Thus, for instance, if a pregnant woman endures
complications during birth and is medically disabled
for 10 weeks, she can take 26 weeks ofleavc--l O weeks
of medical leave and an additional 16 weeks of fami ly
leave-to bond with her child.
Second, District law provides certain employees up
to seven days of paid leave each year. whereas federal,
rVlaryhmd, and Virginia laws offer no such benefits.
Finall y, whcn it comes to discri mination protection.
Maryhllld and Virginia largely rely on the federal pro-
tected categories: race, color, scx, age (40 and older),
disability, religion, nati onal origin, pregnancy, :md
genetic information. The District goes e\'cn further-
age over 18 years is protected, as is persollal appearance,
"'fllRillg Ihe Sllll/d" Ilppell r! paiodimlly ill vVashington Lawyer (IS II jOrllmfor D.C. /Jar members 10 isslles oj ill/pOrlllllC;" fa I bflll <llId
tblll 'Would bl" ojjfllt:USI I O olh,rs. '/'bf opilliollS r:-tpr" sud llff Ihf IWfbor's OWII.
'rAKING THE STAND
political affiliation, marit:ll SI:IIUS, sexual orientation. gender iden-
ti ty or expression, Elluil}' responsibilities, source of income, plate of
residence, :U1d matricubtion. D.C. Code 2- 1401 , et seq.
AJ50 of note, o.c. laws apply to some degree to both Maryland
and Virginia employers who h:lve employees who spend some of
their time in r.he District. Thus, employcrs in the District,:IS well
as employers whose cmployees wander into thc District, must be
aware of the added requirements ofD.C, employment !ali's.
D.C. Family and Medical Leave Act
The District of Columbia h:15 its own FI'I'iLA, D.C. Code
32-501 , rl srq., and it is diflcrem from the federal act. In 2(}()9 the
District promulgJ.tcd regulations to implement the o.c. FMLA.
4 DCMR 1600, (/ Setl. (D.C. register No\'. 19,2010). 'nle
appl ies to :\I1y cmployer who has 20 or more cOl'ered employees. A
covered employee is defined as any worker who works more th:lIl
50 pucent of his or her time in the District, or, if the employmellt
is -base<r in the District. who (Ioes not spend more than 50 per-
cent ofllis or hcr time in an)' olle state :md docs spend:1
liar :mlOlLnt of time working: in the District. 4 DCMR 1603.5.
hours). If II worker goes out on lpprol'ed sick lelve. :\Od during
rhe Jc;I\'C meets the 1,000 hours/one-year cmploymcnt re(luire-
ment, the employee will obtain D.C. Fi'vILA protection, ;lIId the
16 weeks ofleave start s thcn.
/lv(lililbl .. Met/ital lIlId P(lmily LtIlVl'. The D.C. FM.LA allows
16 I\'ceks of IClI'e for medical purposes an 16
weeks for r.1mily purposes. 4 DCMR 1604. The medi-
cal lea\'C C:II1 be taken interminendy, is medically neccsS:lry. 4
DCMR 1605.1. The is allowed for ;1Il)' serious
health issue, the definirioll of whiell is essentially the 5;lme as
the fedeml definition: (i) a condition requiring at least one night
of in-p:uient care; (2) three or more d:l}'s of incapacity with :\1
least two medical treatments-rhe fi rst one must be within 10
days of ,he first and the second treatml:nt must
be within 30 of the first or (b) one treltment
and continuing supervised treltment (e.g., physical t herapy). 4
DCMR 160S.3(a). Pregnancy and any chronic condition also
included in the definition of a serious health condition for
which medical leave can be taken. "" DCi\IR 160S.3(b)(e).
Thus, if an employee is bte to work because of morning sickness
Family leave is allowed for the birth, adoption, or foster care
placement of a child; for an employee permanently assuming parental
duties for a child; or for an employee who needs to care for a family
member with a serious health condition.
CrroJ,.ml Employers. vYhile the regu!:uions :Ire not clear, it
appears if an employer h:l s 20 or more employees, but fewer
than 20 arc covered employees, then none of them is e!igibll: for
D.C. Fi ... ILA. 4 DCMR 1601.S. Under the lct, if a pcrson
starts :md during that peri od the emplo),er drops below the
20-employee limit, the protected leave nel'erthcless continues. 4
DCi\'\R 1603.11.
j oillt Elllplo),ers. If twO entities c..xcrcise control over the
work or working conditi ons of thc employee, then they arc joint
employcrs. However, only the employer must prOl'ide
the D.C. Fi\'ILA benefits, the secondary employer must accept
the employee back :Ifter !e:lve if the employee is still using lellve
from the primary employer, :lIId cannot discriminate :Igainst the
worker fa r taking leave. Most often thi s is the placement :lgenc),
when dealing wi th tempomr), employces. -l DCM R ] 602.
Lel/gth if"St rviu. An l'mployee is eligible for D.C. FI'vILA if
he or sill: h:IS workcd for one year with no break in service. except
for holid:I)" sick, or personal lelvc. To be eligible, the employee
need 110t have worked for 12 months immediately before tbe
D. C. FM LA leave, but the Olll: -year work period should not hal'e
t:Iken place more than Sl:\'en ),e:lrs prior. The employee also must
havc worked 1.0GO hours in t.he 12 months right before rhe D.C.
FMLA 1e;ll'e. Paid holiday, sick, and v;lcarion time count tow,ml
the I ,GOO hours, as docs time on' for military le:tvc under the Uni -
formed Serviccs Empl oyment and Reemploymcnt Rights Act of
1994. 38 U.s.c. 4301, ,'f s"l-; -l DCMR 1630. 111e burdl:n
is on the l:mplo)'er to show the employce Iws not worked 1,0GO
hours (c.g., for exempt employees who do not rl:cord their work
oran asthm:l attack, she is protected evell ifshe did not Sl:e a doc-
rime.4 DCMR 1605.4.
Family le:lI'e is all owed for the birth. :Idoption, or foster
placement of child; for :m emplo}'ee permanently assuming
parem:ll duties for a child; or for an employee who needs to care
for a ElIl1i l)' member with;1 serious health condition. 4 DCMR
1606.4.
A family member includes any person related by blood. legal
custody, or marri agc; :l fosler child; a child who lil'cs with the
employee who assumes responsibility; or :t
person who has committed rel ationship with Ihe employee :md
li\'es with, or wilhin the laSt year lived with, the empluyee.
4 DCMR 1699.1. If the leave is for a child's birth, adoption,
or placement, it must be use(1 within 12 months after the child
arrives and C:UlIlO! be t:lkell imerminemly, unless the employer
agrel:S W intermittent It':I\'l:, in which case The intemlincnt leave
can la,t 24 months. 4 DCMR 1606.'1.
P(lid Lmv,. An employer may require Ihat paid leave requested
duc to a qualif}'ing condition also count tow:lrd the 16 weeks of
both the f.1mily :l!1d medical leave order." DCMR \605.5.
1606.7. I f two fiunily members work lor the s:une employer, their
joint 1l:;I\'e for the same reason call be limited to 16 wecks tOl :11
during the t\\lO :lnd no more than four weeks simult;lllc-
ously. 4 DCMR 1606.9-1606.11 .
For employees, salaries can be reduced pro rat a for
time ofT under D.C. FMLA, and the), will not lose their exempt
status.' DCMR 1608. This is, of course, :ll so truc for federal
FMLA 1c:lI"e.
TAKING THE STAND
COlllilll/illg ClJ'IJrmge /Iliff Job Pro/ttli(JII. Li ke t he federal act.
D,C. Fi\'ILA requires a cont inuation of group health insurance
eover.lge, wi th the employee conrinuing 10 pay any premium he
or she paid before the le;I\'e, as well ;IS job protect ion upon the
employee's return, except for certain high lcvcl employees where
the b ck oLI replacement would cause Subsl;uHial :md gr;we ceo
nomic harm to the employer. The hi ghlcvel employee must be
told of the bel. of rcslOr.llion right s ;11 the time hi s or her le;II'e
starts, 4 DCMR 1609.
Noliu of Righls. Employee rights under D.C, FMLA must
be posted and included in any employee h:mdbook or manual.
If there is no handbook or m'Hlual. t he notice of rights mllst
be given 10 new employees :IS a handout. Electronic JXlsti ngs
:lIld electronic handout s by c mail arc permitted. 4 DCrvlR
1613. 1, 1613.2. Notices must be in I;I!lb'l.I;lge appropriate for the
employee. 4 DCJ\'IR 1613.8.
Crrliji((l/ioll mid No/ice R'"qllirt/I/O/Is. ! \ ~ with fede!";!1 FMLA
Ic:we, if:HI employee requests le:we, or if an employer knows an
employee is OUI due to :t qU:lli fying el'ent, then Ihe employer
must provide written noti ce within five (hys to the employee in
the form of an el igibil ity lett er. which incl udes the number of
:wai l:lble leave hours. " DClvl R 1613.4. Al so si mil:lr to the
federal progr.II11, :t n emplo)'ee can be reqllired to provide medi
cal cerl ific:t lioll within 15 days, and the employer mllSI accept or
rejeci the cert ifica ti on withi n fi ve business days" 4 DCMR
16 13.5, 1615. If an employer doubts the \'alidity of a certifica
ti on, the employer can require !I second opinion at t he employer's
expense, :md if that pro\'i dcr disagrees wi th the need, a third pro
TAKI NG THE nAND
I'ider shall bl: used as a final decider, again at the employer's cost.
1 DC r-. 'I R 1615.6- \615.8. For t:unily 1c:lVe, the employcr also
can requi re an ;I ffida\'i t that the employce is in 1:lct prol'iding C;l re
for a fi lmily member. 4 DCMR 1615.11.
Empl oyees must give 30 days' notice for forese<':able
and notice no later than five business d:1)'S after the employee's
absence begi ns. 4 DCI'dR 1614. If medi cal tre:Hment (an
be scheduled to :l\'oid undul), di srupting the operat ions of an
enlplo)'er, the worker must attempt to do subject to the he:thh
care provider's approval. 4 DCr-.m 1614.5(b).
In calculating the 24-moll th period, employers loan lise the
c:tlendar year, ;111)' fixed period, or:1 rolling period from the date of
absencc, provided prior noti ce is given to employees and the same
method is appli ed to all cmployees." DClVIR 1616. Employers
must kecp :mnual records ;15 to D. C. FrvJ LA leave taken, incl ud-
ing it s cost. 4 DCMR 1617.5. The records must, of course, be
treated as t-onfident ial, kept separate from other documell ts, ;lOd
protected by a lock. 4 DCMR 1617. 0-161 7.8. Special rub
apply to school empl oyees. 4 DCrvl R 1618.
Employment Opporrunitr Commi ssion or by a Stal e
While some practitioners who hal'e not discrimi -
113tlon cases may argue th;lt it is not ;] big deal to enlarge the
categories of protected those who must defend di seri llli-
nal ioll cases lLl1derst:\lld the added burden. To :tllege di scri mina-
ti on, all a worker must do IS (1) chim he or she is in a prot ected
l: ategOTY, and (2) allegl: an adverse actiOll (e.g .. fililure to be hired,
failure to bl: promoted, failure to be gil'en a misc, or tCfmina-
tion of emploYlnent), which the empl oyee could claim was due
to hi S or her prOiected st:ttus. The more protected c:' tegories, the
more availabl e for the I:mployee to usc in a discrimina-
tion claim ag:li nst his or her supervisor.
For c.xample, an older African American male supervisor fires
an older Afriean ' \merican male worker and rcplacl: s him wi th
another older African Aml:rican male. The employer, believing
that it's home free, thinks there can be no claim of dis(rirnina -
tion. I-Io\\"ever, II"h:1I if the supen'isor is a Republi can and Ihe
employ!!c oll ce menti oned he I'oted Democr:tt ic? \Vlt at if b(lth
the supervi sor and the replacelllenr arc s.ingl e and the fired
What if the fired employee is fat and homely while the replacement
is of normal weight and handsome, and the supervisor once told the
employee he should lose weight for better health? The more protected
classes, the more likelihood an employee can allege discrimination.
Paid Leave for D.C. Employees
For )"e:trs, Congress has <Ii scussed re(luiring paid leave f(Ir
but it has not acted, and is unlikely to act, in the
fmure. The District of Columbia. by contrast, cnacted paid Ielwe
requi rements in 2008, D.C, Code 32- 131, ct SNI.
Thc j\ccflled Sick :md Safe Leave Act of 2008 requ ires up to
sewn days of pai d leave, depending on Ihe. employcr's size. If an
employer has 24 or felVl:T employees, it mll st provide one hour of
paid leave for el'ery 87 hours worked, bur not to c..xceed three days
a year. If ;111 emplo),er has 25 to 99 employees, it must pT!1l' ide one
hour of paid leave for every 43 hours worked, but not 10 c.xceed
five dars a year. If employer has 100 or more employees, it
must provide one hour of paid for every 37 hours worked,
but not to c.xned seven days a year. A covered employee is anyone
who works more than 50 percent of his or her lime in the Dis-
Iri ct. Excluded ,Ire independent cont mclOrs, srudents, health c;lre
workers who have a premium paid progr.un, and res!:mrarn wait
st,dT and bartenders who receive tips.
Paid le'II"C starts to :lCcme :15 soon :15 the empl oyee st:trts work,
but it GUillot be used until the cmployee has worked one year and
1.000 hours. P .. id le,j\'c can be for ,tnything D.C, Fj\<ILA
can be used for.
Expanded Discriminat ion Laws
The DistriCl 's di scrimination !:til'S differ from the federal stat-
utes in tWO important aspects. First. the), CO\'er signifi cantly more
protected categnries. Second, the employee can sue right away-
he or she need not wai t for an illl'estigation by the U.S. Equal
employee is marri ed? \-\lIt :\! if the fired cmployee is fat ;md
homely whi le the replaccrnern is of normal weight ,md h:md-
mme, :md the supervisor oncc told thc employee he should lose
weight lor better health? The more protcctcd d'lsses. the more
likdihood'l11 employee can allege discrimination.
Some of the DistriCl's extensions of the di scriminat ion law
!lImos! seem silly. For instance, under D.C. bw, if a 32-year-old
fires II 19-year-old employee, and the replacement is
30 years old, the 19-re;lr-old could claim ;Ige di scrimination.
\ Vhilc all employers need to h:l\'e realistie writt en annu;11
emplo)'ee eV:l luations, document ing all perform;lIlee and di sci-
pl ine problems, the need is greatest in the District bccause uf
it s cxp:lIlded cat egories of protected status, rv]oreover, bc(ause of
generous D. C. juries, employers in the District should consider a
preemployment ;Irbitmtion :tgreemcnt or:\ jury w,liver agreement
for thei r employees.
Li kewise, when an employee is terminated, even for cause, a
good insuran(e poli l:}' may be to oner a modest Sel'er:UlCC pa(k-
age in exchange for a general rdeilse (i n compliance, ()f course,
with the Oldcr Workers Benefit Protection Act. e.g., 21 days lor
the eillployee to consider it iUld sel'en days to rel'oke it). This is a
low-cost altefll!ltivc to expensive litigation.
Lawrmre P. Poslol is a pflrlllcr lit Scyji,rtb Sbflw LLP Nt is fI 1976
gmtilllll( oj COrlldl LIIW School, uhclc hc WIIS 011 tbt bOllrd ojl"dilors
oj tbt' Cornell L:tw Review. POflol hill S//{usifilily arglled //lOr.: Ihllll
25 ((lUS h'fori' the U.S. COllrls oj Appmls lind WOIt two ({ISCS hrji;,.t
1/)( US. SlIprtlllf COMI.