MURIEL BOWSER
MAYOR
April 20, 2022
The Honorable Phil Mendelson
Chairman, Councilofthe District of Columbia
1350 Pennsylvania Avenue NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Enclosed for consideration and approval by the Councilofthe District of Columbia is the Universal
Paid Leave Office of Human Rights Enforcement Rules Approval Resolution of 2022 and the
proposed final rulemakingof the Office of Human Rights regarding complaintsof interference and
retaliation under the Universal Paid Leave Amendment Act of 2016 and the coordination of
universal paid leave benefits with leave benefits under the District of Columbia Family and
Medical Leave Act of 1990 and the federal Family and Medical Leave Act of 1993.
The rulemaking implements the enforcement provisions found at section 108(d)-(e) of the
Universal Paid Leave Amendment Actof 2016 (UPLA), effective April 7, 2017 (D.C. Law 21-
264; D.C. Official Code 32-541.01 et seg.), which provides that complaints other than claims
determinations are to be processed under the same procedures as the District of ColumbiaFamily
and Medical Leave Actof 1990, effective October 3, 1990 (D.C. Law 8-181; D.C. Official Code
32-501 ef seq.). Complaints other than claims determinations would concern interference and
retaliation as prohibited by section 110(a)-(b) of the UPLA.
L urge the Council to take prompt and favorable action on the enclosed resolution. Ifyou have any
questions regarding the proposed final rulemaking, please contact Hnin Khaing, Interim Director
ofthe Office of Human Rights, at (202) 727-4559.
Sincerely,
iel Howser
Enclosures
Sewer syusune
Chairman Phil Mendelson
at the request of the Mayor
A PROPOSED RESOLUTION
IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
ul
12
13
14 To approve the proposed final rulemaking creating a new Chapter 17ofTitle 4ofthe District of
15 Columbia Municipal Regulations.
16
17 RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this
18 resolution may be cited as the Universal Paid Leave Office of Human Rights Enforcement
19 Rules Approval Resolution of 2022.
20 Sec. 2. Pursuant to section 102(b) ofthe Universal Paid Leave Amendment Act of 2016,
2 effective April 7, 2017 (D.C. Law 21-264; D.C. Official Code 32-541.02(b)), the Council
2 approves the proposed final rules of the Office of Human Rights, to amend Title 4of the District
23 of Columbia Municipal Regulations to establish procedures for processing universal paid leave
24 complaints other than claim determinations, submitted by the Mayor to the Council on
26 Sec. 3, Transmittal.
27 The Council shall transmit a copyofthis resolution, upon its adoption, to the Mayor.
28 Sec. 4. Fiscal impact statement.
29 The Council adopts the fiscal impact statement of the Chief Financial Officer as the fiscal
30 impact statement required by section 4a of the General Legislative Procedures Act of 1975,
31 approved October 16, 2006 (120 Stat. 2038; D.C. Official Code 1-301.47a).
32 Sec. 5. Effective date.
33 This resolution shall take effect immediately.
 OFFICE OF HUMAN RIGHTS
NOTICE OF FINAL RULEMAKING
The Director of the Office of Human Rights (OHR), pursuant to the authority set forth in section
102(b) of the Universal Paid Leave Amendment Act of 2016 (Universal Paid Leave Act),
effective April 7, 2017 (D.C. Law 21-264; D.C. Official Code 32-541.02(b)), section 18ofthe
District of Columbia Family and Medical Leave Act of 1990, effective October 3, 1990 (D.C. Law
8-181; D.C. Official Code 32-517), Mayors Order 2021-026, dated March 4, 2021, and Mayor's
Order 2009-45, dated March 31, 2009, hereby gives noticeofthe final rulemaking action to adopt
amendments to Title 4 (Human Rights) of the District of Columbia Municipal Regulations
(DCMR) by adding a new Chapter 17 (Complaints of Interference and Retaliation under the
Universal Paid Leave Amendment Actof 2016 and Coordinationof Benefits with the D.C. Family
& Medical Leave Act of 1990 and the federal Family & Medical Leave Act of 1993).
A Notice of Proposed and Emergency Rulemaking was published in the D.C. Register on
November 12, 2021, at 68 DCR 012056. The OHR Director adopted the Second Emergency
Rulemaking on January 27, 2022, which was published in the D.C. Register on March 4, 2022, at
69 DCR 001722.
This final rulemaking describes the scope of OHRs enforcement authority under the Universal
Paid Leave Act, provides examples of employer interference and retaliation prohibited by the
Universal Paid Leave Act, and clarifies the relationship between the protections, remedies, and
enforcement proceedings under the Universal Paid Leave Act, the federal Family and Medical
Leave Act of 1993, approved February 5, 1993 (107 Stat. 6; 29 U.S.C.A. 2601 et seg.), and the
District of Columbia Family and Medical Leave Act of 1990, effective October 3, 1990 (D.C. Law
8-181; D.C. Offficial Code 32-501 et seg.)
During the public comment period, OHR received comments from advocacy groups and
Councilmember Robert White. The requested changes to the proposed rules, OHRs responses,
and OHRs reasoning for its decisions regarding the requested changes are set forth in the below
chart:
Section Description of Requested Explanation of OHRs Reasoning
OHR received comments|OHR has considered these comments and
requesting the removal of the | has not deleted this reference, or any other
reference to legitimate| reference to the term legitimate business
1702.2
business reason because it| reason, as it is well supported in legal
does not align with the| authority as a defense to retaliation claims.
definition ofretaliate.
1704.2 OHR received comments| OHR has considered these comments and
requesting to add or other job-| has added this language to recognize there
 protection laws in the first are other laws that provide leave benefits
sentence after DCFMLA. and job protection.
OHR received comments that OHR has reviewed these comments and will
UPL and DCFMLA claims remove the language in the section that
should be processed as one formalizes the processoffiling two charges.
charge, rather than two However, OHR notes that it may continue
separately docketed charges. processing separate charges due to the need
1705.4
to address differing remedies and
Councilmember Robert White operational requirements, but the agency
recommended against recognizes that removal of this language
formalizing the requirement to allows for flexibility in the future
carve complaints into processingofcomplaints.
independent pieces at the
charging stage.
OHR received comments OHR has considered these comments,
requesting that OHR toll the however, OHR does not have the legal
one-year statute of limitations authority to make such an amendment as the
to file an administrative statute does not include a tolling provision
complaint where an employer for administrative actions while it explicitly
has failed to comply with notice provided one for civil actions. Therefore,
provisions, similar to the tolling the requested change would not be
of civil actions. consistent with the Act. When the
1705.5
legislature uses certain language in one part
of the statute and different language in
another, we are to assume different
meanings were intended. Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004)
(citing a statutory construction treatise); see
Roberts v. Sea-Land Servs., 566 U.S. 93);
Milner v. Dep't of the Navy, 562 U.S. 562,
584 (2011) (Alito, J., concurring).
1799 Definitions
OHR received comments to OHR has considered this comment and
amend the definition of amended the definition to simply state that
employee to strike and after an employee is a covered employee
DC. Code 32-541.01(3) and pursuant to D.C. Code 32-541.01(3),
insert or. The comments because an eligible individual, as defined
Employee wanted OHR to change the by the statute is a covered employee. The
definition to address situations term is amended, in part, to make it clear
in which a covered employee is that a covered employee, who meets the
deterred by his or her employer other eligibility requirements, may file a
to participate in a qualifying tetaliation or interference complaint with
event, and therefore, does not OHR, in instances where an employer fails
 meet the definition of eligible to provide the required notice under the
individual. UPLA or otherwise deters the covered
employee from participating in a qualifying
event and becoming an eligible individual.
OHR received comments to OHR has considered this comment and
revise the definition of removes the definition from the regulations.
discrimination, including the OHR will rely on current legal authorities,
Discrimination incorporation of the D.C. including statutes, regulations, and caselaw,
Human Rights Acts definition to determine the meaningofthis term.
of unlawful discriminatory
practices.
OHR received comments |OHR has considered this comment and
requesting that the definition of removes the definition. Instead, OHR will
Harassment harassment be __revised rely on current legal authorities, including
completely, including striking statutes, regulations, and caselaw, to
severe or pervasive. determine the meaning of the term.
OHR received a OHR has considered this comment and
comment
requesting a clarification that made technical changes to the extent a
the rulemaking does not state clarification was warranted. These changes
Other paid leave but paid-leave were made to subsections 1703.2, 1704.2,
benefit to avoid any confusion and 1704.4.
about the fact the UPLA does
not provide leave entitlements.
OHR has also corrected typographical
errors in subsections 1703.1, 1703.5,
Clerical 1703.7, 1705.2, 1705.6, and 1799.... and
Changes clarified language in subsections 1702.2,
1703.4, 1704.1, 1704.2, 1704.4, 1705.4,
1705.5, 1706.1, and 1799.
Pursuant to section 102(b)(2)ofthe Universal Paid Leave Amendment Act of2016, effective April
7, 2017 (D.C. Law 21-264; D.C. Official Code 32-541.02(b)(2)), the Council of the District of
Columbia approved these rules on XXXX. The Director of OHR adopted these rules on XXXX,
and they shall become effective on the date of publicationofthis notice in the D.C. Register. This
Final Rulemaking shall supersede the emergency rules adopted by the Director of OHR on January
27, 2022, and published in the D.C. Register on March 4, 2022, at 69 DCR 001722.
Title 4, HUMAN RIGHTS, of the DCMR, is amended by adding a new Chapter 17,
COMPLAINTS OF INTERFERENCE AND RETALIATION UNDER THE UNIVERSAL
PAID LEAVE AMENDMENT ACT OF 2016 AND COORDINATION OF BENEFITS
WITH THE D.C. FAMILY & MEDICAL LEAVE ACT OF 1990 AND THE FEDERAL
FAMILY & MEDICAL LEAVE ACT OF 1993, to read as follows:
CHAPTER 17
COMPLAINTS OF INTERFERENCE AND RETALIATION UNDER THE UNIVERSAL
PAID LEAVE AMENDMENT ACT OF 2016 AND COORDINATION OF BENEFITS
WITH THE D.C. FAMILY & MEDICAL LEAVE ACT OF 1990 AND THE FEDERAL
FAMILY & MEDICAL LEAVE ACT OF 1993
1700 Authority, Scope, and Purpose
1701 Interference Prohibited
1702 Retaliation Prohibited
1703 Interaction with the Federal FMLA and the DCFMLA: Concurrent Usage,
Entitlements, Notice, Rights, and Scope of Coverage
1704 Interaction with DCFMLA: Employment and Benefits Protection
1705 Administrative Proceedings and Civil Actions
1706 Remedies
1799 Definitions
1700 AUTHORITY, SCOPE, AND PURPOSE
1700.1 Pursuant to Mayors Order 2021-026, dated March 4, 2021, the Mayor has
delegated her regulatory authority under section 102(b)(1) of the Universal Paid
Leave Amendment Act of 2016 (UPLA), effective April 7, 2017 (D.C. Law 21-
264; D.C. Official Code 32-541.10), to the Office of Human Rights (OHR) to
enforce the provisions of, and to receive and adjudicate administrative complaints
alleging interference or retaliation made under, section 110(a) and (b)ofthe UPLA
(D.C. Official Code 32-541.10(a) and (b)).
1700.2 OHR has no jurisdiction over claims determinations or appeals of claims
determinations under the UPLA.
1700.3 The purpose of this Chapter is to describe the scope of OHRs authority under the
UPLA, to clarify the procedures and remedies for complaints under OHRs
jurisdiction, to interpret provisions of the UPLA relevant to OHRs enforcement
authority, and to describe how the UPLA interacts with the DCFMLA and the
federal FMLA.
1701 INTERFERENCE PROHIBITED
1701.1 As provided in section 110(a) of the UPLA (D.C. Official Code 32-541.10(a)), it
is unlawful for any person to interfere with, restrain, or deny the exercise of or the
attempt to exercise any right provided by the UPLA.
1701.2 Unlawful interference, restraint, or denial includes, but is not limited to:
(a) Intimidating or threatening conduct intended to discourage an employee
from accessing paid-leave benefits, or which has the effectofdiscouraging
an employee from accessing paid-leave benefits;
 (b) Providing false or misleading information intended to interfere with an
employee's ability to access paid-leave benefits, or which has the effect of
interfering with an employee's ability to access paid-leave benefits;
Failing to provide notice, as required by 7 DCMR 3407 (Employer
Responsibilities) (under the UPLA), where such failure has the effect of
causing material harm to the employee, including the loss of paid-leave
benefits;
@ Failing to grant a leave request for a period of leave for which paid-leave
benefits would be available, absent a legitimate business reason, where such
denial of leave has the effect of causing material harm to the employee,
including the lossofpaid-leave benefits;
Failing to cooperate with the Department of Employment Services in
processing a request for paid-leave benefits, where such failure has the
effect of causing material harm to the employee, including the loss of or
significant delay in receiving paid-leave benefits;
@ Failing to cooperate with OHR during the processing of a complaint filed
under this Chapter, where such failure has the effect of substantially
impeding OHRs enforcement efforts or of foreseeably causing material
harm to the employee, including a significant delay in compensation for one
or more violationsofthis Chapter; and
@ Failure to comply with 1704.4.
1702 RETALIATION PROHIBITED
1702.1 As provided in section 110(b)ofthe UPLA (D.C. Official Code 32-541.10(b)), it
is unlawful for an employer to retaliate in any manner against any other person
because the person:
(a) Opposes any practice made unlawful by the UPLA;
(b) Files or attempts to file a charge, institutes or attempts to institute a
proceeding, or facilitates the institution ofa proceeding under the UPLA;
Requests, applies for, or uses paid-leave benefits under the UPLA; or
@ Gives any information or testimony in connection with an inquiry or
proceeding related to the UPLA.
1702.2 Unlawful retaliation includes, but is not limited to:
(@) Subjecting an employee to intimidation, threat, reprisal, harassment, or
discrimination;
 (b) Subjecting an employee to an adverse employment action, absent a
legitimate business reason, including discipline, discharge, suspension,
transfer or assignment toalesser position in terms ofjob classification, job
security, or another term or conditionofemployment, including those terms
and conditions enumerated in 4 DCMR 506;
() Reducing the pay or hours of work of an employee or denying an employee
additional hours of work, absent a legitimate business reason;
(d) Informing any prospective employer (whether or not covered under the
UPLA) that the person has engaged in a protected activity described in
1702.1 of this Chapter, absent a legitimate business reason;
() Reporting, or threatening to report, the actual or suspected citizenship or
immigration status ofan employee, former employee, or family member of
an employee or former employee, to a federal, state, or local agency; and
( Engaging in conduct which would reasonably have the effect of
discouraging a reasonable employee from accessing paid-leave benefits,
absent a legitimate business reason.
1703 INTERACTION WITH THE FEDERAL FMLA AND THE DCFMLA:
CONCURRENT USAGE, ENTITLEMENTS, NOTICE, RIGHTS, AND
SCOPE OF COVERAGE
1703.1 The UPLA provides a pay benef