This is the first entry in what will be an occasional series describing my (hopefully successful) attempt to navigate making a claim through Washington, DC’s paid family and medical leave program for the first time. Before I start describing the process, I think it’s important to provide some essential context.
America’s bizarre approach to family and medical leave
At the national level, America is essentially unique in not guaranteeing income to adults after the birth of a child or while recovering from serious illness (our long-term disability program, administered through Social Security, is also exceptionally onerous, essentially requiring total and permanent disability and forbidding enrollees from earning even nominal amounts of money).
Our substitute, the Family and Medical Leave Act of 1993, has some bizarre features as well.
First and foremost are the employer size and job tenure requirements, which exclude businesses with fewer than 50 employees, and employees who have worked for less than a year or fewer than 1,250 hours in the last 12 months for the same employer.
The Act only provides for “job-protected” leave, but if your position is eliminated during your leave then the employer isn’t required to re-hire you (the example the Labor Department gives is if the shift you worked was eliminated).
Most egregiously of all, since most Americans pay their share of health insurance premiums through payroll deductions, they’re forced to make those payments out of pocket to keep their health insurance, at the same time they’ve lost their only source of income!
For all these reasons, FMLA only actually guarantees leave to about half of workers and far fewer than that are in a position to take advantage of it. People return to work far sooner than recommended after the birth of a child or major surgery because even if eligible, they can’t afford to miss a paycheck.
For historical reasons, FMLA also has some distinctive positive features, namely the inclusion of leave for new fathers (relatively rare at the time of passage, although far more common today in peer countries) and its broad definition of family and caregiving.
Of course, FMLA only provides the minimum, federal guarantee of unpaid leave. Nine states and the District of Columbia have their own paid family and medical leave programs, and a lot of people live in those jurisdictions!
Background of DC’s Universal Paid Family Leave program
In 2016, the DC City Council passed the Universal Paid Family Leave Amendment Act, which set in motion the creation of a program that would annually provide up to 2 weeks of income replacement for medical recovery, 6 weeks to provide care and companionship for family members, and 8 weeks to new parents, up to a total of 8 weeks across all three uses.
For legal reasons (we’re not a state) DC can’t impose payroll taxes on employees, so the program was to be financed with a nominal payroll tax on all employers in the District. The 0.62% tax began to be collected July 1, 2019, and was paid into a trust fund that would then start to pay out benefits when the program launched July 1, 2020.
(Side note: hilariously, the tax raised so much money, and usage was so much lower than initially projected, that in this year’s budget cycle our degenerate mayor asked that some of the money be diverted towards other city projects. Instead, the Council voted to raise the amount of personal medical leave to match the 6 weeks provided for caregiving leave.)
Benefits are the same for all 3 types of leave, calculated as 90% of the first $1,000 in weekly wages, and 50% of any amount above that, up to a maximum of $1,000. This is a very stupid way of saying that the maximum benefit is $4,000 per month, reached when your monthly income is $4,800. This works out to an annual income of $57,600, which is somewhat above the median income in DC, making the program relatively inclusive, in the sense that benefits continue to rise along with income, giving even fairly well-off workers “buy-in” to the program. This matters because most professionals in the District also have workplace paid family and medical leave, so if the program were stingier they might have been whipped by their employers to oppose its passage.
Finally, and most importantly for my paid family leave journey, the program also included a voluntary opt-in for sole proprietors and the self-employed. Needless to say, I opted in the minute the portal launched, July 1, 2019, even though I still had my old W-2 job where additional payments were being made on my behalf.
Paying the tax
All of the above paints the program in a pretty flattering light, and as passed by the Council, it’s a pretty good program. Unfortunately, it’s not all sunlit uplands. For those who use payroll processors, which is virtually all employers and some sole proprietors, the payroll tax should be automatically collected and reported to the Department of Employment Services. But for gig economy workers, freelancers, and those who just don’t make enough money to bother (cough, cough), the only way to report income is quarterly, through DOES’s barbaric unemployment insurance portal.
There are two things to know about this process. First is that it’s one of those creaking websites from the 90’s bolted onto a COBOL server. How creaking? It is best viewed at 80% magnification in Internet Explorer.
Still, you might ask, how bad could it be? You pay your estimated federal taxes quarterly, why not just add your quarterly paid family leave tax to that workflow?
Which brings me to the second thing you need to know about this process: payments are due on a different schedule than federal estimated taxes. Federal estimated tax payments are due 4 times a year, but on a more or less random schedule: January, April, June, September. DC PFL taxes are due by the end of the month following the calendar quarter: January, April, July, and October. Only two of the payments periods coincide, so even if you paid PFL taxes “early” on the 15th of January and April, you still have two extra payments to keep track of. I haven’t missed one yet, but I confess I’ve had a couple close calls. The system does technically allow you to schedule payments in advance, but my income is too variable to make that practical.
Sabotage through regulation
An unexpected error was made when drafting the legislation: the administration of the program was placed in the hands of the Department of Employment Services, which administers DC’s unemployment insurance program and is run by the loathsome Doctor Unique Morris-Hughes. Unemployment insurance programs are run in partnership with the federal government, and are built from the bottom up to deny claims (compare this to the Social Security Administration’s old age benefits, which are set up to approve claims).
As they began writing the program’s regulations, they brought that mindset to the project of sabotaging the Council’s intent. The clearest example is when it comes to the definition of eligibility to claim benefits.
The Council legislated that “an ‘eligible individual’…Has been a covered employee during some or all of the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken.”
When the final rules were submitted by DOES, they deliberately sabotaged this inclusive definition, by instead specifying that “an individual shall be eligible for paid leave if…The individual is employed by a covered employer at the time of application.” My understanding is there is litigation pending over this flouting of the Council’s will.
Why does this matter? Because it means workers lose all their eligibility for paid leave if they lose their job as late as a day before filing their application. We know employers discriminate against pregnant employees and those who may become pregnant, and obviously workers experiencing severe illness or learning of a loved one’s illness may miss shifts, show up late, or need to leave early, giving employers plenty of opportunities to fire them “for cause” before they have a chance to file an application for paid leave.
But you don’t need to believe in anything nefarious in the hearts of DC employers to see the problem here. Businesses close, they change their hours, they revamp their offerings, all outside of the control of employees. But if they do so the day before you’re hit by a bus, you lose the right to medical leave entirely, and are shunted into the chaotic void of the unemployment insurance system.
It’s an easy mistake to make to assume the vile Doctor is doing DC employers any favors with this sabotage. On the contrary, since under her regulations you only have to be employed “at the time of application,” it means a worker is entitled to benefits after being employed for only a single day, giving people an enormous incentive to apply for jobs under what an employer would call “false pretenses,” because the simple act of being hired unlocks the leave benefits the Council intended for everyone. Processing applications, interviewing, hiring, and onboarding are enormously expensive for employers, and DOES’s regulations create an explicit monetary incentive to waste employers’ time and money on candidates who have no intention of ever working there.
With that background in mind, I hope you’ll join me on my journey navigating my own application for paid family and medical leave. In the next entry: collecting documents, making my initial application and the “Employer Notice.”