D.C. Mun. Regs. tit. 4, r. 4-1605

Current through Register Vol. 71, No. 43, October 25, 2024

Rule 4-1605 - ENTITLEMENTS-MEDICAL LEAVE

1605.1

An employee who becomes unable to perform the functions of his or her position because of a serious health condition shall be entitled to medical leave for the period during which the employee is unable to perform the functions, except that the medical leave shall not exceed sixteen (16) workweeks during any twenty-four (24)-month period. The medical leave may be taken intermittently or on a reduced schedule basis for planned and/or unanticipated medical treatment or recovery when medically necessary.

1605.2

For purposes of this chapter, "serious health condition" means a physical or mental illness, injury, or impairment that involves inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment or supervision at home by a health care provider or other competent individual. For the purposes of this definition:

(a) The term "treatment" includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment such as the taking of over-the-counter medications, bed rest, or similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute continuing treatment for purposes of DCFMLA leave.

(b) The term "inpatient care" is the care of a patient in a hospital, hospice, or residential medical care facility for the duration of one (1) overnight or longer, or any subsequent treatment in connection with such inpatient care.

(c) The term "incapacity" means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition.

(d) Conditions for which cosmetic treatments are administered, such as most treatments for acne or plastic surgery, are not "serious health conditions" within this definition unless they render the recipient of such treatment incapacitated or unless complications develop.

1605.3

A serious health condition involving continuing treatment by a health care provider includes any one (1) or more of the following:

(a) A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:

(1) Treatment two (2) or more times within thirty (30) days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (for example, physical therapist) under orders of, or on referral by, a health care provider. Whether additional treatment visits or a regimen of continuing treatment is necessary within the thirty (30) day period shall be determined by the health care provider;

(2) The term "extenuating circumstances" in subparagraph (a)(1) of this paragraph means circumstances beyond the employee's control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the thirty (30)-day period, but the health care provider does not have any available appointments during that time period. The requirement for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within ten (10) days after the first day of incapacity; or

(3) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. The requirement for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit shall take place within ten (10) days after the first day of incapacity.

(b) Any period of incapacity due to pregnancy, or for prenatal care. See also29 CFR § 825.120;

(c) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (such as asthma, diabetes, and epilepsy);

(d) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease; or

(e) Any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three (3) consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (such as chemotherapy and radiation), severe arthritis (physical therapy), or kidney disease (dialysis).

1605.4

Absences attributable to incapacity under § 1605.3(b) or (c) shall qualify for DCFMLA leave even if the employee does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three (3) consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee's health care provider has advised the employee to stay home when the pollen count exceeds a certain level. As a further example, an employee who is pregnant may be unable to report to work because of severe morning sickness.

1605.5

Nothing in this section shall require an employer to provide paid medical leave. Should an employee wish to use paid medical, sick, vacation, personal, or compensatory leave which the employee has accrued, the employee may use such paid leave, provided that it otherwise meets the employer's requirements for the taking of such paid leave. Any paid medical, sick, vacation, personal, or compensatory leave provided by an employer that the employee elects to use for medical leave under this chapter shall count against the sixteen (16) workweeks of allowable medical leave provided by the DCFMLA.

1605.6

If an employer has a program that allows an employee to use the paid leave of another employee under certain conditions (commonly referred to as a leave bank), and the conditions for the employee's use of the leave bank have been met, the employee may use the paid leave as medical leave, and the leave shall count against the sixteen (16) workweeks of medical leave provided by the DCFMLA.

D.C. Mun. Regs. tit. 4, r. 4-1605

Final Rulemaking published at 38 DCR 4350, 4353-56 (July 12, 1991); as amended by Notice of Final Rulemaking published at 57 DCR 10788, 10794 (November 19, 2010)

The Notice of Final Rulemaking published at 57 DCR 10789 (November 19, 2010) amends Chapter 16 of Title 4 by renaming it, "District of Columbia Family and Medical Leave Act." The Notice of Final Rulemaking also amends the existing the sections within Chapter 16, including renaming some of the sections. 4 DCMR § 1605 is formerly entitled, "Hearings."

Authority: The Director of the Office of Human Rights, pursuant to section 301(c) of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1403.01(c)) , and Mayor's Order 2009-45, dated March 31, 2009.