Leaves of Absence Articles

The recently passed American Rescue Plan Act of 2021 (ARPA) extends previously available tax credits through 9/30/21 for employers who voluntarily offer Covid related paid leave, provides involuntarily terminated employees 6 months of COBRA at no cost, and expands certain unemployment compensation programs.

When the Families First Coronavirus Response Act (FFCRA) was passed in March 2020 it required employers with less than 500 employees to provide Emergency Paid Sick Leave (EPSL), and Emergency Family and Medical Leave (EFMLA), through 12/31/20. Employers received a tax credit for any monies paid for EPSL or EFMLA. Under the Consolidated Appropriations Act of 2020 (CAP), such employers were no longer required to provide EPSL or EFMLA beyond 12/31/20, but those who voluntarily did so were permitted to continue taking tax credits through 3/31/21.

Under the ARPA, such employers may voluntarily extend EPSL and EFMLA leave rights through 9/30/21, and continue receiving tax credits through such date for doing so. The ARPA also makes some substantive changes to both the EPSL and EFMLA provisions, however, providing these benefits are completely at the discretion of the employer.

In addition to the 6 initial reasons for EPSL, the ARPA extends the categories of paid leave (up to 10 days) to periods when the employee is getting a Covid-19 vaccine, recovering from any complications due to the vaccine, or the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of COVID–19, after such employee has been exposed to COVID–19, or the employer has requested such test or diagnosis.

Further, the EFMLA now permits paid time off of up to 12 weeks, instead of the prior 10 weeks, not only for the prior reasons of a school closing or loss of childcare services, but for all reasons covered by the EPSL. Any pay under the EFMLA is limited to 2/3 of earnings up to $200/day, or $12,000 for 12 weeks.

These changes effectively provide up to 14 weeks of pay, with the first 2 weeks (EPSL) paid at either 2/3 to $200/day, or 100% to $511/day, depending on the reason, and the final 12 weeks (EFMLA) paid at 2/3 to $200/day, regardless of the reason.

In addition, under the ARPA, employees who may have exhausted some or all of their 80 hours of leave under the EPSL will, effective 4/1/21, be eligible for a new 80 hours of EPSL entitlement. Employees who have only used a portion of their 80 hours prior to 4/1/21 cannot carry over the unused hours, and will only be eligible for a total of 80 hours effective 4/1/21.

To receive the tax credits, employers may not discriminate in the way employees qualify for EPSL or EFMLA. As such, employers may not discriminate in favor of highly compensated employees, full-time vs. part-time employees, or based on length of service.

Separately, employees involuntarily terminated, or suffering a voluntary or involuntary reduction in hours making them eligible for COBRA, are now entitled to fully paid COBRA from 4/1/21 through 9/30/21. This paid COBRA right is not discretionary and must be provided to any employee meeting the involuntary separation, or reduction of hours criteria. Employees who were COBRA eligible before 4/1/21, but who declined coverage or dropped coverage, must be sent a new enrollment notice to cover the period from 4/1/21 through 9/30/21. The U.S. Department of Labor has developed model notices for employer use. Employers may recover the costs they pay for COBRA through a tax credit. The COBRA subsidy is non-taxable to the employee. The COBRA benefits also apply to smaller employers, with less than 20 employees, who are subject to Connecticut’s benefit continuation statute (Mini-Cobra).

Finally, the ARPA extends the 3 unemployment compensation programs springing from the Covid pandemic. These include the Pandemic Unemployment Assistance Act (PUA) that covers individuals typically not eligible for unemployment compensation like self-employed workers, or those unable to work due to a Covid related reason, which has been expanded from 50 to 79 weeks of benefits; the Federal Pandemic Unemployment Compensation Act (FPUC), which currently provides a $300 weekly supplement through 9/6/21; and the Pandemic Emergency Unemployment Compensation Act (PEUC), which provides 53 weeks of additional unemployment compensation to those whose 26 weeks of state benefits have expired, for a total of 79 weeks of unemployment compensation. The ARPA also makes the first $10,200 of unemployment compensation federally tax free to employees (single or married) with a 2020 adjusted gross income of under $150,000. Each spouse can take a $10,200 exemption.

The Second Circuit Court of Appeals recently held that employees bringing claims of retaliation under the federal FMLA need only prove that their exercise of FMLA rights was a “motivating factor” in an adverse employment action, and not the “sole factor.”  Woods v Start Treatment and Recovery Centers.  This case reverses the Second Circuit’s previous position on the issue.

The plaintiff worked as a substance abuse counselor for defendant.  She took FMLA leave to deal with a legitimate medical condition. Within 3 weeks of returning to work from leave, she was fired.  Defendant claimed it was due to her well documented poor performance. Plaintiff argues it was due to her exercise of FMLA rights.

The District Court found for the company.  The Second Circuit vacated the decision because it concluded the District Court relied on the wrong section of the law, and the incorrect standard of proof, when rendering its decision.  

The Circuit Court reviewed two sections of the FMLA that arguably applied.  Section 2615(a)(2), which was used by the District Court, prohibits an employer from discharging or discriminating against an employee for opposing any practice made unlawful by the Act.  Under this section, the District Court held that the “but for” standard applied, and an employee must show that the sole reason for termination was retaliation for exercising FMLA rights.

The Second Circuit, however, relied on section 2615(a)(1), which makes it illegal to interfere with, restrain, or deny any right provided by the law.  It discussed how retaliation for exercising actual FMLA rights, in contrast to retaliation for opposing some practice, is more aptly covered under 2615(a)(1) than (a)(2).  In addition, it also ruled that the lower “motivating factor” standard applies to section 2616(a)(1), and not the higher “but for” standard. The Court left open whether the “but for” or “motivating factor” standard applies to section 2615(a)(2) retaliation claims based on the opposition theory.

As a result of the Court’s decision, plaintiff’s claims will again be examined by the District Court using the newly enunciated standard to see if her exercise of FMLA rights was at least a motivating factor in the termination decision.  If so, she wins, as she no longer has to prove it was the sole factor.

The ruling eases the burden employees must meet when bringing retaliation claims after exercising FMLA rights.

Effective November 29, 2016 federal contractors are required to provide employees with up to 56 hours of annual paid sick time.  Executive Order 13706.  Since Connecticut already requires certain employers to provide certain employees up to 40 hours per year of paid sick time, such employees whose employer is also a federal contractor will only receive an additional 16 hours of paid time off each year.   Also, employers with PTO policies that provide an equal or greater amount of paid time off, which can be used as outlined by the new Order, do not need to provide additional paid sick time under the Order.

The requirement covers new contracts and replacements of expiring contracts with the federal government that result from solicitations on or after January 1, 2017.  Employees must accrue 1 hour of paid sick leave for every 30 hours worked “on” or “in connection with” a covered federal contract, capped at 56 hours (7 days) in a year.  

Employees that work “on” a covered contract are those that are performing the specific services called for by the contract. They are covered, regardless of the number of hours worked in a year and regardless of whether they are full or part time.  Employees that work “in connection” with a covered contract are those that perform work activities that are necessary to the performance of the contract, but are not directly engaged in the specific services called for in the contract.  An employee who spends less than 20% of his or her hours working “in connection” with a covered contract in a workweek is not covered.

Alternatively, employees can be provided at least 56 hours of paid sick leave at the beginning of each accrual year rather than requiring employees to accrue leave based on hours worked.  

Employees must be notified in writing of the amount of paid sick leave they have available at the end of each pay period or each month, whichever interval is shorter.  

Employees may take time off in 1 hour increments, unless their work makes it physically impossible to leave or return to the job during a shift, and can use the time for their own illness or other health care needs, for the care of a loved one who is ill, for preventive health care for themselves or a loved one, for purposes resulting from being the victim of domestic violence, sexual assault, or stalking, or to assist a loved one who is such a victim.  During the leave, employees must be given their regular pay and benefits, except that they need not earn additional paid sick leave during that time.

Employers can require employees using paid sick leave to provide certification from a health care provider showing the need for leave, if the leave lasts 3 or more consecutive days.

Employees may carry over up to 56 accrued, but unused paid sick leave from one year to the next, however the amount of paid sick leave employees may have for use at any one time can be limited to 56 hours. The integration of the carryover and accrual rules gets complex and the DOL has provided the following information to help manage the law:

If an employer front loads the sick time bank with 56 hours, and an employee carries over 16 hours of paid sick leave from the prior year, the contractor must permit the employee to have 72 hours (16 hours plus 56 hours) of paid sick available for use at any time during the second year.  This scheme differs from Connecticut law, which effectively prevents an employee from carrying over any unused time when an employer front loads their bank.

If, however, an employer uses the accrual method, any paid sick leave carried over from the previous year shall offset the amount of time an employee may be able to accrue at any given time during the second year.  For example, if an employee carries over 16 hours of paid sick leave into the second year, she must be permitted to accrue 40 additional hours of paid sick leave. Once she has 56 hours of paid sick leave accrued, the contractor may prohibit her from accruing any additional leave until the workweek after she uses some portion of the 56 hours. For instance, if, after reaching the 56-hour cap, she uses 24 hours of paid sick leave (16 hours of the carryover and 8 hours accrued in the current year), she must be permitted to accrue up to at least 16 more hours (in addition to the 40 hours she has already accrued during the second year) for a total of 56 hours accrued in that year.

If an employee is rehired by the same contractor within 12 months after a job separation, the employee is entitled to reinstatement of any accrued, unused paid sick leave, unless the contractor already paid out the employee upon separation.

More information can be found on the U.S. Department of Labor’s website in its Fact Shee t and Overview.

The Second Circuit Court of Appeals, which covers Connecticut, found that managers who hold significant authority over a company’s administration of the Family and Medical Leave Act (FMLA) can be held personally liable for violations of the law.  Graziadio v. Culinary Inst. Of America.

In Graziadio, an employee requested FMLA leave to care for a son suffering from diabetes.  Shortly thereafter, she asked for a second leave to care for another son who broke his leg playing basketball.  While her leave requests were initially granted, the company’s HR Director requested additional medical documentation to substantiate the need for each leave.  Although the employee attempted to comply with the information request, the HR Director fired the employee when the Director determined the employee was being unresponsive in providing the documentation.

The employee brought suit against the company, and the HR Director personally, claiming FMLA interference, FMLA retaliation, and violation of the ADA.  The District Court granted defendants’ motion to dismiss. The Second Circuit reversed, except as to the dismissal of the ADA claim.

In reinstating the FMLA claim against the individual HR Director, the Appeals Court reviewed whether the Director met the definition of an “employer” under the FMLA.  As part of its analysis, the Court noted that several other Circuits have applied the definition of “employer” used in the Fair Labor Standards Act (FLSA) to the FMLA.  The FLSA relies on the “economic reality test” to analyze employer status. The test is often used to determine whether a worker is in “economic reality” an employee dependent on the employer for wages, or an independent contractor who relies on a wider range of clients for income.

More specifically, under the FLSA the courts have analyzed economic reality by reviewing the totality of circumstances using a number of nonexclusive and overlapping factors.  These factors include whether the alleged employer (1) had the power to hire and fire the employee, (2) supervised and controlled the employee’s work schedule or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records regarding the employee.  

In the FMLA setting, these factors boil down to “whether the employer controlled in whole or in part the employee’s rights under the FMLA.”

In the instant case, the Court found the HR Director played an important role in the decision to fire the employee, even though a more senior manager formally held the authority to terminate.  Because the more senior manager effectively delegated his authority and duty to the HR Director, the Director was found to have controlled the termination decision, and thus met the first prong of the FLSA test outlined above.

Also, because the HR Director directly administered the FMLA program, including the right to return to work, she was found to have met the second prong of the test as well.

In making its ruling, the Court emphasized that the HR Director was personally liable as an “employer” because she reviewed the employee’s FMLA paperwork, determined its adequacy, controlled the employee’s ability to return to work, and handled all communications with the employee, including the termination letter.

Separately, the Court held for the first time that the elements a plaintiff must prove to establish a prima facie case of FMLA interference are (1) that she is an eligible employee under the FMLA, (2) that the defendant is an employer as defined by the FMLA, (3) that she was entitled to take leave under the FMLA, (4) that she gave notice to the employer of her intention to take leave, and (5) that she was denied benefits to which she was entitled under the FMLA.

Additionally, the Court reiterated the elements to establish a FMLA retaliation case, (1) the employee exercised rights protected under the FMLA, (2) the employee was qualified for the position, (3) the employee suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of retaliatory intent.  If the employee makes this showing, the employer must demonstrate a legitimate, non-discriminatory reason for its actions. If it does so, the employee must then prove that the employer’s proffered explanation was pretexual.

Finally, the Court declined to determine whether the U. S. Supreme Court’s decision in  University of Texas SW Medical Center v. Nassar , which held that in Title VII cases an employee must show that the desire to retaliate was the “but for” reason for the adverse action, also applies to FMLA cases, or whether such desire need only be a “motivating factor.”

CFEPA Retaliation

In an unrelated case, the District Court for Connecticut held that individual managers can be held personally liable for acts of retaliation under the Connecticut Fair Employment Practices Act (CFEPA).  Ferguson v. Fairfield Caterers. In that case, a long term manager was fired after she refused to persuade her father, who had also worked for the company, to drop his age discrimination claim against the company.  The company claimed the manager was actually terminated for taking vendor bribes. The jury found for the manager and assigned liability for the illegal firing to the two individual owners of the company instead of the corporate entity.

The two owners appealed their assignment of personal liability by claiming the corporate entity, and not they individually, terminated the manager.  However, the Court found that the retaliation section of CFEPA, 46a-60(a)(4), prohibits “any person” from acting to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or has filed a complaint.  Also, the Court noted that § 46a-60(a)(5) prohibits “any person” from aiding or abetting the doing of any act declared to be a discriminatory employment practice.  Therefore, an individual and not just a corporate entity can be held liable for retaliation, as well as for aiding and abetting.  The Court went on to find that the jury’s decision to hold the owners personally liable was reasonable, and permissible under the Act.

Conclusion

These cases point out the need for individual managers to know the law and fully comply with it in order to avoid personal liability.  Even managers or directors who are not imbued with the ultimate authority to fire can be held responsible for termination decisions they are involved with, and played a substantial role in.  Adding individual managers as named defendants can lead to sleepless nights, and significantly alter a company’s settlement position.

Effective October 1, 2014, several important changes to the Connecticut Paid Sick Leave law take effect.  Public Act 14-128.  To be covered by the law an employer must employ 50 or more employees in Connecticut.  To determine compliance with the 50 employee threshold employers previously measured their workforce each quarter during the prior calendar year.  If in any one quarter they had at least 50 employees they were required to comply with the law beginning the following January 1. Now, employers need only measure their workforce once, during the week in which October 1 falls.  If during that week the workforce has at least 50 employees, the employer must comply with the law beginning the following January 1.

To prevent tampering with the workforce numbers, the Act makes it unlawful to terminate, dismiss, or transfer to another site, any employee for the sole purpose of not qualifying as an employer under the Act.  In addition, radiologic technologists will now gain coverage under the law.

Further, the Act will now permit an employer to designate any 365 day period as the leave accrual period, instead of being limited to using a calendar year accrual period.

A recent Connecticut District Court decision highlights the need for employers to affirmatively determine if a request for leave is covered by the FMLA, even if the employee does not specifically request “FMLA leave.”  McNamara v. Trinity College , 2013 U.S. Dist. LEXIS 6045 (D. Conn. Jan. 15, 2013).  The employee worked for Trinity College and requested a leave to care for his wife who was undergoing hip replacement surgery.  The employer never informed the employee of his FMLA rights, and did not treat his two week absence as FMLA protected leave. Instead, it issued him a written warning for poor attendance.

Shortly thereafter, the employee required more time off to care for his sick daughter.  Again, Trinity failed to cover the leave under the FMLA, and instead terminated the employee for missing work.

The employee filed suit in federal court claiming retaliation for taking FMLA leave.  To state a prima facie case of retaliation, an employee must show he exercised rights protected by the FMLA; was qualified for the position; suffered an adverse employment action; and the adverse action occurred under circumstances giving rise to an inference of retaliatory intent.  Trinity argued that the employee could not have been retaliated against when he never asked for, or was placed on, FMLA leave.

The Court, however, sided with the employee.  It found Trinity failed to properly categorize the absences as FMLA protected leave.  The Court noted that once the employee notified his employer of the need for leave and the reasons, the employer had an obligation to inquire further, if necessary, to determine if the requested leave was covered under the law.  In particular the Court cited Department of Labor regulations that state: When an employee seeks leave for a FMLA qualifying reason, the employee need not expressly assert rights under the FMLA, or even mention the FMLA. In all cases, the employer must inquire further of the employee if more information is required to determine whether the requested leave is covered under the law.

Here, Trinity knew or should have known that the requested time off was covered by the FMLA.  Since Trinity failed to inquire further, or properly categorize the leave as FMLA protected, it could not later argue the employee’s retaliation claim was invalid because he was never placed on FMLA leave to begin with.  

A key takeaway for employers is that once an employee reveals a need for leave, the employer must make any inquiries necessary to determine if the leave qualifies as FMLA leave.  It is not necessary for the employee to specifically request “FMLA leave” for the employee’s rights to be triggered. A failure to grant the leave, or any retaliation for taking the time off, will cause an employer to be found in violation of the law.

The U.S. Department of Labor recently provided  guidance  on when employees may take federal FMLA leave to care for an adult child who is incapable of self-care because of a disability.  The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

Under this definition, an employee may take FMLA leave to care for a child under 18 years of age, without regard to whether the child has a disability. An employee must only show a need to care for the child due to a serious health condition.  

However, if the child is 18 years or older, the employee must show the “son or daughter” has a mental or physical disability and is incapable of self-care because of that disability. In defining “mental or physical disability,” the Americans with Disabilities Act’s (ADA) definition of “disability” applies.  That is, “a physical or mental impairment that substantially limits a major life activity,” as amended by the broader definitions contained in the Americans with Disabilities Act Amendments Act (ADAAA).  

Assuming the child is disabled, as defined by the ADAAA, he or she must also be “incapable of self-care because of the disability” to meet the definition of a covered “son or daughter.”

The new regulations define “incapable of self-care because of mental or physical disability” to require “active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living.”  More specifically an employee requesting leave must show all the following are met: The adult son or daughter (1) has a disability as defined by the ADAAA, regardless of how old the child was at the time the disability began; (2) is incapable of self-care due to that disability; (3) has a serious health condition; and (4) is in need of care due to the serious health condition.

The guidance also pertains to military caregiver leave.  Under the military caregiver provision of the FMLA, a parent of a covered servicemember who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met. Now, when the injured servicemember requires care beyond the initial 12 month caregiver period, the FMLA will allow parents to continue such care of their wounded adult child as long as all other FMLA requirements are met.

The Connecticut Supreme Court recently held that the Connecticut Family and Medical Leave Act (CTFMLA) only covers employers with at least 75 Connecticut based employees.  Velez v. Commissioner of Labor , 306 Conn. 475 (2012).  The decision clarifies that employers with a total workforce of 75 or more employees are not covered by the Act, if they employ fewer than 75 employees in Connecticut.      

The case arose when an employee of a company employing over 1000 employees nationwide, but only 35 in Connecticut, sued the company for violating the CTFMLA when it terminated her for failing to return to work at the expiration of a company provided leave of absence.  The Department of Labor Hearing Officer found she was not covered by the Act because the company employed less than 75 employees in Connecticut.

The employee appealed and the trial court found in her favor, ruling the 75 employee threshold was met if an employer employed at least 75 employees, including those working outside the state.  

The Supreme Court, relying on the Department of Labor’s regulations, reversed.  Those regulations provide that the only employers covered by the Act are those that employed at least 75 employees in Connecticut on October 1 of the year prior to the alleged violation, regardless of the number of employees it may have employed elsewhere.  

The Court also stated the regulations served to harmonize state and federal law.  Under the federal FMLA employers with 50 or more employees are covered, regardless where those 50 employees work, unless the employee claiming coverage works at a facility with fewer than 50 employees, and the employer employs less than 50 employees within a 75 mile radius of the employee’s facility.  For instance, if the employee works at a site with 25 employees, and the employer employs another 10 employees within 75 miles of the site, the employee is not covered. Conversely, if the employer employs another 30 employees within 75 miles of the employee’s worksite, the employee is covered.  For federal FMLA purposes, an employer is covered if it meets the 50 employee threshold for each working day during 20 or more workweeks in the calendar year in which coverage is sought, or in the preceding calendar year.

The rationale for the federal 50 employee/75 mile radius exception was to lessen the burden even on large employers who have small numbers of employees in particular locations.  This same concept applied to the Court’s reasoning in finding that large employers with less than 75 employees in Connecticut should not be held to the state’s leave law requirements.

In sum, employers with less 75 employees in Connecticut are exempt from coverage under the CTFMLA, and those with less than 50 employees in a 75 mile radius are also exempt from covering those employees under the federal FMLA.

Effective January 1, 2012, Connecticut became the first state to require paid sick leave. Public Act No. 11-52. Employers should make sure their handbooks, and policies, including those covering leaves of absence, paid time off, attendance, and medical documentation procedures, all comply with the new law.

Covered Employers

Under the law, most employers of 50 or more employees within the state are covered. More specifically, an employer who lists 50 or more employees in its Quarterly Earnings Report filed with the Connecticut Department of Labor (“Department”) during any quarter in the previous calendar year is covered. For companies with multiple unemployment registration numbers, each such number is evaluated separately. Therefore, if one employer has two unemployment registration numbers and files separate Quarterly Earnings Reports for each, each reporting unit is evaluated separately against the 50 employee threshold. If unit A reports 75 employees and unit B 30; only unit A is covered.

Once an employer is covered it must determine if any of its locations (“establishments”) are exempt. Employer “establishments” listed in sectors 31, 32 or 33 of the North American Industry Classification System are exempt from the Act. Although manufacturing companies initially presumed they were completely excluded from the Act’s coverage, along with nationally charted organizations exempt from taxation under section 501(c)(3) of the tax code, it turns out this thinking was premature.

Instead, because the Department has taken the position that each single physical location of a company must separately qualify for the exemption, a manufacturing company with a manufacturing plant, and a separately located warehouse would be exempt from the law at its plant, but covered by the law at its warehouse. Further complicating matters, where both buildings are located on a single campus, if the primary activity on the campus is manufacturing, all buildings are exempt. If not, then even manufacturing buildings must comply with the law. Corporate offices of manufacturing companies, separate from their manufacturing sites, are also covered by the law.

Covered Employees

Once a covered employer determines it has covered locations, it must then determine which employees at the covered location are entitled to paid sick leave. Employees who meet the definition of “service worker” are entitled to paid sick leave under the law. “Service workers” are hourly paid employees, or those exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act, who primarily work in specifically defined occupational codes defined in the Act. Generally, non exempt employees engaged in health services, food services, security, hospitality, retail, child care, administration, and information technology will be covered. Day or temporary workers are not considered “service workers.” Part-timers are, as long as they averaged 10 hours or more per week during the last complete calendar quarter prior to accruing or taking the leave.

When determining what jobs fall within the “service worker” definition do not rely on job titles alone. Just because a title is not listed does not mean the job is not covered. Employers must read through the job descriptions to see if the duties are covered, even if the title is not listed. Also, employees who work in more than one job are covered if they are primarily engaged to perform work in a covered classification.

Once you determine a job is covered, an employee must complete 680 hours of actual work, not including paid time off, before being able to take accrued sick leave, unless agreed to by the employer.   Sick time, however, accrues during the 680 hour period.  The employee must also have averaged at least 10 hours of work per week in the most recent complete calendar quarter in order to take time off. The counting of the 680 hours began on January 1, 2012, or upon the date of hire, whichever is later.

Employees who leave the company prior to completing 680 hours and then return are considered to have had a break in service and any hours worked before the break must be counted toward the 680 hour rule upon the employee’s rehire. This is true regardless of how long the break was. However, any sick time accrued prior to the break is forfeited and the actual accrual of sick time begins anew upon rehire.

Seasonal employees, like school bus drivers, are treated as part-time employees so that their summer break is not considered a “break in service” and they do not forfeit time accrued prior to the school shutdown period once school resumes in the Fall.

Employees covered by a collective bargaining agreement shall become eligible under the Act at the expiration of their current agreement. Any labor agreement beginning on or after January 1, 2012 must comply with the Act.

How Much Leave Must Be Provided

Covered employers must allow their “service workers” to accrue one (1) hour of paid sick leave for each forty (40) hours worked, to a maximum of forty (40) hours per calendar year. Sick leave is to be accrued in not less than one hour increments. “Service workers” must be allowed to use their leave in one hour increments, and may not use it in less than one hour increments, unless permitted by the employer. An employee can take a maximum of 40 hours of paid leave each calendar year.

Employees must be paid their normal hourly rate for any paid time off. Excluded from the definition of normal hourly rate are overtime and commissions. Tipped employees whose normal hourly rate is below the normal minimum wage must be paid the statutory minimum wage for non-tipped employees.

In lieu of taking sick time off, the company and employee may agree to permit the employee to work additional hours, in the same or subsequent pay period, equal to the number of hours absent, without reducing the employee’s sick leave bank. Allowing an employee to work more hours in a subsequent pay period in order to preserve hours in the sick leave bank, does not excuse the employer from any overtime obligations it may have if the employee works more than 40 hours in the subsequent period. Employers may also permit employees to donate unused accrued time to another employee.

Employers who already offer paid time off for the purposes outlined in the Act, which accrues at the same rate and is at least equal to that required by the Act, need not provide additional sick leave by virtue of the new law.

Carryover and Cash-Out Rules

Employers must permit their “service workers” to carry accrued but unused hours (up to 40) into the following calendar year, but no more than 40 hours of paid leave can be taken in any calendar year. Employers may permit “service workers” to voluntarily take a cash-out at year end for any accrued, but unused leave time, instead of carrying those hours forward. Employers may not, however, require involuntary cash-outs. Accrued, but unused sick leave need not be paid out upon termination, regardless of the reason for separation.

PRACTICE POINTER : The carryover rules are more complex than the above explanation implies. The simplest way to comply with the law is to front load each employee’s sick leave bank with at least five PTO days on January 1 each year. This way you have complied up front with the current year accrual requirement, and have no carryover issues to deal with. This is because the employee is not entitled to more than five days for the entire year and you will have met that requirement on January 1. Therefore, there is no need, or right, to carry over days from the prior year for purposes of the law.  

If you decide to not front load PTO, you cannot have a year-end “use it or lose it” PTO policy. For instance, if you allow an employee to accrue time by law over the course of the year and at the end of the year they have accrued 5 days, and used 2, you must allow them to carry over 3, because as of January 1 they have no other PTO in their bank.

Further complicating the issue are instances where employers accrue over the course of the year but do so at a more generous rate than required by law. For example, if an employee accrues 10 days per year and has taken 6 as sick leave, 3 as vacation, and has 1 left at year-end, the employer need not let the employee carry over the 1 day left as the employee has already used at least 5 days for sick leave purposes that year. If, however the employee has taken 6 vacation days, 3 sick leave days and has 1 day left, that 1 day is eligible for carryover, because the employee has not used his full allotment of sick time in the current year. This forces employers to record the reason for each PTO day taken, and flies in the face of why most employers instituted PTO programs, which was to eliminate such recordkeeping and allow employees to take the time off for any reason. To overcome this problem, employers can decide to allow all unused PTO to be carried over.

Please note many employment attorneys believe the law does not require the carryover of any PTO once an employee uses 5 days for any purpose, but the Department has interpreted the statutory language in a manner that requires the approach outlined above. This will most likely be litigated and eventually resolved by the courts.

What Can the Leave Be Used For

Sick Leave can be taken for the service worker’s own illness, injury, health condition, medical diagnosis, treatment, or preventative care, as well as that of a child’s, or spouse’s. Also, service workers who are the victim of family violence or sexual assault are permitted time off for medical care, to obtain victim services, relocate, or participate in legal proceedings related to the violence. Any unpaid leave provided under Conn. Gen. Stat. § 31-51ss (leaves for victims of family violence) is in addition to leave under this Act, and the two leaves are not required to be taken concurrently.

Employee Notice Requirements

Employee notice of up to seven (7) days is required, if foreseeable, and if not then notice must be given as soon as practicable. Employees who could have provided required notice and failed to do so may be denied paid sick leave and can be disciplined if they take the time off. Employers may require appropriate documentation for leaves of three (3) or more consecutive work days, but do not have the right to seek clarification or additional opinions as permitted under the FMLA.

Retaliation Provisions

Covered employers may not discriminate or retaliate against any employee, not just “service workers,” for taking sick leave, including leave permitted by policy, or for filing a complaint with the Labor Department. Civil fines of $100 per violation may be assessed where employees are not given their statutory rights, and $500 for retaliatory conduct. In addition, employees are entitled to make whole relief for any violations.

Complaint Process

Complaints may be filed with the Connecticut Department of Labor. Employees covered by a collective bargaining agreement may also pursue a separate claim under the grievance procedure in their labor agreement.

If a formal hearing is conducted, the Labor Commissioner can order the employer to pay civil penalties. Aggrieved employees are entitled to reinstatement, back pay, pay for the use of sick leave, and reestablishment of benefits. Parties may appeal the Commissioner’s final decision to Superior Court, but have no other private right of action.

Employer Informational and Posting Requirements

New employees must be provided notice of their entitlement to sick leave, the amount of leave they are eligible for, and the terms under which the leave may be used. They must also be informed of the anti-retaliation provisions of the Act and the right to file a complaint with the Labor Commissioner. Notices must be provided in English and Spanish. Posters available from the Department satisfy this requirement.

Helpful Links

Public Act 11-52- Download Here

CT DOL Guidance- Download Here  

CT DOL Paid Sick Leave Poster- Download Here

CT DOL Paid Sick Leave Poster-Spanish- Download Here

North American Industry Classification System- Download Here

List of covered Service Worker Titles and Descriptions- www.bls.gov/soc