Expansion of D.C. PFML Benefits; Extension of Offsetting Prohibition
October 12, 2021
As part of the Fiscal Year 2022 Budget Support Emergency Act of 2021, the following changes were made to D.C. Paid Family and Medical Leave benefits effective October 1, 2021 – September 30, 2022:
- Paid medical leave increased from 2 weeks per 12 months to 6 weeks for leaves starting on or after September 26, 2021.
- The normal 7-day unpaid waiting period is waived.
- The benefit calculations increased based on the employee’s highest four-quarter earnings out of the most recent 10 quarters (as opposed to the previous calculation of the highest four quarters out of the most recent five quarters).
- Miscarriage and stillbirth were added as qualifying reasons for medical leave.
- Pre-natal leave was added as a new qualifying leave category providing two weeks of paid leave benefits.
The Emergency Act also extends the prohibition of short-term disability policies reducing benefits (also known as offsetting benefits) based on an insured’s receipt of medical leave benefits from the district. As previously reported, this prohibition was initially effective May 2021 and was temporary. Under the new law, the prohibition will remain in place until at least September 30, 2022.
The Department of Employment Services is expected to publish a revised PFML poster in the coming weeks. Employers should revise their leave policies as necessary.
D.C. Fiscal Year 2022 Budget Support Emergency Act of 2021 »
Coordination of Short-Term Disability and PFML Benefits
July 07, 2021
On May 26, 2021, DC Mayor Bowser signed B24-0185 into law. Enacted as Emergency Act 24-0090, which is effective immediately and expiring August 24, 2021, the new law prohibits short-term disability policies issued in DC from offsetting or reducing benefits based on DC Paid Family and Medical Leave payments.
Unfortunately, we have no additional guidance at this time as to how this provision will be administered. It is common for either the short-term disability policy or the state PFL program to offset benefits so that the employee does not receive more than 100% of their normal wages while on leave. In DC, an employer cannot interfere with an employee's right to PFML benefits. Thus, DC PFML benefits do not coordinate with short-term disability policies. In other words, DC PFML pays primary. This has resulted in short-term disabilities policies paying secondary to PFML with reduced benefits. However, the new law prohibits this practice.
We will continue to monitor this issue and report any developments. Employers should work with their advisor and short-term disability insurers to make any necessary changes to leave policies, documents and operations.
Emergency Act 24-0090 »
Pregnancy as a Qualifying Event
May 11, 2021
The DC Council has adopted an ordinance that creates a new qualifying event for an insured to enroll in coverage mid-year based upon pregnancy. The enrollment period extends to 30 days following the date of pregnancy confirmation, as certified by a healthcare professional. It appears that the event would extend to any individual eligible under the group health plan who becomes pregnant including the employee, domestic partner, spouse or child. After review by Mayor Bowser and the US Congress, the law was effective October 20, 2020.
Importantly, pregnancy is not a recognized qualifying event under Section 125. Thus, if an employee adds coverage mid-year under this event, any associated employee contributions will likely need to be deducted on a post-tax basis.
D.C. Law 23-135. Pregnancy as a Qualifying Event Act of 2020 »
Declaration of Emergency Leave
April 14, 2020
On March 17, 2020, the City Council approved the COVID-19 Response Emergency Amendment Act. The act added a new category of leave to the existing D.C. FMLA. The declaration of emergency (DOE) leave is available to employees who are unable to work during a period of time where the mayor has declared a public health emergency; and the employee has self-quarantined or isolated due to a recommendation or order by a health care provider, federal/state official, or the mayor.
Unlike existing D.C. FMLA, the DOE leave applies to employers of any size with an employee performing work in the district. Additionally, employees do not have to meet any service requirements to be eligible. The amount of unpaid leave is indefinite for the period of the public health emergency.
COVID-19 Response Emergency Amendment Act »
Order on COVID-19 Coverage
March 31, 2020
On March 20, 2020, the Department of Insurance published Commissioner’s Order 01-2020, relating to COVID-19 screening, testing and treatment. The order requires carriers to cover all medically necessary screening, testing and treatment for COVID-19 or suspected COVID-19 or respiratory diseases/illnesses detected in the course of seeking screening, testing or treatment for COVID-19 without cost sharing of any kind (including deductibles, copayments and coinsurance). This includes all associated costs, such as processing fees and clinical evaluations. In addition, carriers may not require any preauthorization for any COVID-19-related screening, testing or treatment, and carriers must cover all out-of-network charges (including cost sharing and balance billing) unless the employee was first offered the service in-network without unreasonable delay. Further, if and when an immunization or vaccine becomes available for COVID-19 per CDC guidelines, carriers must immediately cover the cost for those services without cost sharing.
In addition, the order states that carriers must enhance their coverage of telehealth services, and are directed to review their telehealth programs with participating providers; cost sharing for telehealth must not be more than for in-person services. Also, with respect to prescription drug access, carriers must allow enrollees to obtain refills of their prescription medications before the scheduled refill date, and should waive any additional costs associated with accessing prescriptions from a mail-order pharmacy.
The order is directed towards carriers, but employers should be aware of the DC order’s requirements, and should work with their carrier on any questions relating to COVID-19-related coverage.
Commissioner’s Order 01-2020 »
Revised FAQs on Insurance Issues Related to COVID-19
March 31, 2020
On March 24, 2020, the Department of Insurance published revised FAQs on insurance issues related to COVID-19. The revised FAQs are meant to help employers, carriers and DC residents better understand some of the challenges and questions associated with COVID-19-related coverage. Some FAQs are more aimed toward employees/DC residents, including where an employee/resident can go to get tested for COVID-19, who is responsible for the cost, whether preauthorization is required, and whether testing/treatment for COVID-19 must be done at in-network facilities. The FAQs also address the interaction between COVID-19 testing without cost sharing and an employee’s HSA eligibility.
The revised FAQs contain no new employer compliance obligations, but can serve as a great resource for employees who might have questions on their insurance and generally with respect to COVID-19.
Revised FAQs »
Paid Family Leave Poster and Resources Published
January 22, 2020
As reported previously, D.C.’s paid family leave law becomes effective July 1, 2020. That is the date that eligible employees will become entitled to up to eight weeks of paid leave to bond with a new child, six weeks to care for a seriously ill family member, or two weeks for their own serious illness. Employers have been submitting the required tax assessment since July 1, 2019, in preparation for the new requirement. As a reminder, the new law applies to any employer with an employee who performs at least 50% of their work within the District.
The Department of Employment Services (DOES) has published a Paid Family Leave Employee Notice. The notice must be posted in the worksite with other employment posters by February 1, 2020. The notice must be provided in electronic or physical form to all existing D.C. employees at least once between February 1, 2020, and February 1, 2021, and annually thereafter. All new employees must receive a copy at the time of hire. Finally, the employer must distribute the notice to any employee who notifies the employer on or after February 1, 2020, of their need for leave for an event that could qualify for PFL benefits.
Further, DOES has posted an Employer Toolkit, which is designed to answer frequently asked questions and assist employers revise their leave policies.
DOES PFL Employee Notice »
DOES PFL Employer Toolkit »
Employer Reporting Responsibility Related to Individual Health Insurance Mandate
December 10, 2019
Since the beginning of 2019, D.C. residents must have minimum essential health care coverage or pay a tax penalty. As a result, employers will have reporting responsibilities to the District. The responsibility will be satisfied by submitting the same IRS Forms 1094-B, 1095-B, 1094-C, and 1095-C to the D.C. Office of Tax and Revenue (OTR). In other words, employers will file them with the IRS to comply with their federal responsibility under the employer mandate. They will then file the same forms with the OTR to satisfy their District responsibility.
The requirement applies to employers with 50 or more employees, one of whom resides in D.C. The forms will need to be filed electronically through the MyTax.DC.gov website. For this first year, the filing deadline for the 2019 forms will be June 30, 2020. In future years, the deadline will be 30 days following the IRS deadline for submitting forms.
There is no mention of the requirement only applying to self-insured employers. It appears that both fully insured and self-insured large employers would need to comply, even though the carrier for a fully insured plan will already be submitting the Forms 1094-B and 1095-B on behalf of the plan. Hopefully, future guidance will be issued prior to June 2020. We will keep you updated on any developments. In the interim, employers should work with reporting vendors and internal personnel to prepare for the new requirement.
D.C. OTR Notice 2019-04 »
Enforcement of Employer Commuter Benefit Requirement
October 15, 2019
On August 16, 2019, the D.C. Department of Employment Services published final regulations related to the enforcement of the existing commuter benefits requirement. Since January 1, 2016, employers with 20 or more employees in D.C. must offer access to one or more transit benefit options. All employees working 50% or more of their service time in D.C. are counted. Those options are:
- Employee pays pre-tax contributions for transit benefits
- Employer pays transit benefit costs for employees (either through reimbursement or the provision of pre-paid metro cards)
- Employer provides transportation through a shuttle or vanpool
The employer must:
- Notify employees of the available transit benefit program (read the notice here)
- Provide information to covered employees on how to apply and receive benefits
- Issue benefits to covered employees that request or apply for them
- Maintain records to establish compliance with the requirements
- Record that notice was given to employees
- Records showing that elected benefits were provided
Under the final regulations, effective November 14, 2019, the penalties for failure to comply are: $100 for the first offense; $200 for the second; $400 for the third; and $800 for the fourth and subsequent offenses. Please note: an offense is considered each employee per month that is not offered at least one qualified transportation program benefit.
Notice of Final Rulemaking »
Universal Paid Leave
April 16, 2019
As previously reported, employers with employees who perform at least 50 percent of their work in D.C. will be required to contribute to the Universal Paid Leave Program. Employers must pay 0.62 percent of all wages for such employees to fund the program, which will provide paid leave to eligible employees for leaves on or after July 1, 2020.
The employer contributions are scheduled to begin July 1, 2019. NFP’s Benefits Compliance team has received confirmation from D.C. Department of Employment Services, Office of Paid Family Leave, that the employers will owe the 0.62 percent assessment on the second quarter earnings, which is payable in July. In other words, employers need to be working with their payroll provider now to collect the tax on wages beginning April 1, 2019. The office will release final regulations and further clarification soon. They are exploring the option to include the wage reporting and tax payment in the Employer Self Service Portal, which is used for unemployment insurance reporting.
Department of Employment Services, Paid Family Leave Information »