In #FamilyFirstFridays, Paid Family Leave, Washington, DC
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Major #PaidLeave4DC Milestone Announcement!

Earlier this month, the DC Government released the final proposed rules that will govern the District’s forthcoming paid family and medical leave program, set to go into effect in July. Paid leave will make DC a better place to live, work, raise a family, and do business — and we have already heard from many who are eager to use the program this summer. 

Rulemaking is when the Executive interprets legislation and fills in the details of day-to-day operations for how the government will implement a law. The law and regulations must work together to ensure an inclusive leave program that is easy to administer and that levels the playing field for workers who have historically been locked out of earning income while balancing caregiving responsibilities. Thanks to more than 1,000 comments submitted by people and businesses affiliated with the DC Paid Family Leave Coalition, the final rules reflect vast improvements from the original 2018 draft, but they fall short of guaranteeing a #FairShot to all hard working families. 

Let’s start with the good news.

Two years ago, proposed regulations forced applicants to extensively document their identity while simultaneously limiting the medical documents they could use to validate their benefit claims. Both of these paperwork barriers are now substantially improved! Previous regulations proposed an impractical, rigid system for paying out intermittent leave benefits (e.g. you had to know the exact dates – in advance! – you would be out for a chronic illness) — the final rules now better reflect how people experience periodic medical and caregiving challenges in real life. Various other important improvements have been made thanks to the comment processes and other oversight avenues, and we’re very grateful for these changes. 

Now for some disappointing news…

The DC Paid Family Leave Coalition did as much as it could in the Universal Paid Leave Act itself to remove barriers to paid leave usage for low wage and immigrant workers, to expand family definitions, and ensure benefits would be portable, but the Executive branch always has a lot of discretion in rulemaking. 

The Mayor had an opportunity to use regulations to alleviate stress and hardship on working families in the midst of a health emergency, i.e. to give all families a “#FairShot,” as she is so fond of saying. Indeed the coalition organized an unprecedented number of comment submissions urging the Administration to lean into that opportunity and stand up an equitable program. Disappointingly, that advice was ignored. While the final rules provide responses to comments, these responses overwhelmingly reflect choices: choices made to create barriers to usage and ground the regulations in exclusion, rigidity, and distrust. This approach is reflected in rules that went unchanged as well as those changed for the worse without notice, including:

  • Requiring someone to be employed when applying for benefits even though small business employees do not have job protection, employees are all too often fired when requesting or even suspected of needing leave, and people in high-turnover positions may be between jobs when an emergency arises. The law was written to apply to anyone with a wage history in the system leading up to a paid leave benefit need, not just people who are currently employed.
  • People who work multiple jobs must forgo all of their shifts on a day when they need to take leave, even if a medical condition would only necesitate missing a day of work from one of their jobs. Problematically, the regulations also imply that people who do work in Virginia or Maryland would need to call out of those jobs too in order to use their DC paid leave benefits.
  • Applying for benefits retroactively — to tend to health matters that came up suddenly or unexpectedly — is limited to an unfairly restrictive set of circumstances.
  • If you are providing end of life care for a loved one, your benefits will be cut off immediately upon their death, with no grace period of even a single day to grieve or arrange their funeral. There was no ability to comment on this cruel provision of the rules, as it was added only in the final stage.

So, what’s the takeaway?

Based on the regulations, there are many people and circumstances that will qualify for paid leave benefits easily and will have little challenge utilizing this program to meet their family’s health and economic needs. Phew! BUT there are others who are likely to fall through the cracks that have been created by these rules, particularly people who have complicated health or caregiving needs, inconsiderate bosses, or who are struggling to make ends meet working multiple jobs. In DC, this means that Black and brown workers in lower wage jobs will feel the effects of the regulations’ barriers most acutely. What a profound missed opportunity to create a #FairShot for already marginalized workers.

The decision to craft inaccessible rules fits this administration’s pattern: prioritizing the perceived needs of business owners over those of poor and working people.

What happens next?

The final iteration of rules is long overdue, placing the DC Council in an untenable bind. Disapproving these rules or making major revisions at this point will compromise the on-time launch of the program in July because of IT, publicity, and resource design needs. Delaying the program’s launch would be the ultimate disservice to working families — all across DC, families are joyfully preparing to welcome a new child, or receiving devastating diagnoses and planning treatment regimens. These families deserve the promise of paid family and medical leave. Whether we like them or not, we must allow these program rules to go into effect to ensure paid leave benefits can be available for those in need right now. While the leadership of the DC Paid Family Leave Coalition condemns these regulations for the barriers to access they create, we cannot in good conscience block them from going into effect.

The coalition is already discussing legislative and regulatory fixes to fight for after the July launch, and developing program navigation strategies to ensure all workers have the supports they need to apply for and take advantage of their benefits. The coalition is also exploring legal avenues to restore the law’s intention of inclusion, not exclusion. Stay tuned for how you can be part of the next steps of this campaign, and let us know if you have ideas for how to improve the program. There is a public oversight hearing January 30, 2020 at the DC Council — all are invited to attend, testify, and tune in as important #PaidLeave4DC launch details are discussed.

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