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Paid Sick Leave Bill’s Anti-Retaliation Provisions Broader Than Just “Service Workers”

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour

Remember how I indicated that most of the paid sick leave bill covers only “service workers”? That’s true, but there is a big exception that hasn’t been mentioned much elsewhere.

Indeed, employers who have 50 or more employees should beware: The new Paid Sick Leave bill’s anti-retaliation provisions may cover all employees, not just the “service workers.” (Employers with less than 50 employees or those employers who are manufacturers or like the YMCA are excluded from coverage.)

This retaliation provision has huge implications for employers when drafting paid sick leave policies and for implementation purposes.  As a result, the notion that employers only have to worry about “service workers” in this new bill is a false one.

The bill's anti-retaliation provisions appear to apply to all "employees".

All employers covered by the act will need to be aware of this and may need to change policies and procedures to address it.

Here’s the text of the public act at issue (in section 5):

(a) No employer shall take retaliatory personnel action or discriminate against an employee because the employee (1) requests or uses paid sick leave either in accordance with sections 2 and 3 of this act or in accordance with the employer’s own paid sick leave policy, as the case may be, or (2) files a complaint with the Labor Commissioner alleging the employer’s violation of sections 2 to 6, inclusive, of this act.

Notice the use of the word “employee”; that is different from the use of term service worker. Even the Office of Legislative Research picked up on this distinction in its report on the bill.

The bill bans most employers from terminating, suspending, constructively discharging, demoting, unfavorably assigning, refusing to promote, disciplining, or taking any other adverse employment action against an employee because the employee (1) requested or used paid sick leave as provided by the bill or in accordance with the employer’s own paid sick leave policy or (2) filed a complaint with the labor commissioner alleging an employer violated the bill’s provisions.

Since this portion of the bill uses the term “employee” rather than “service worker,” it applies to a broader number of workers than the rest of the bill, which is focused on certain job classification codes. This extends the retaliation ban to all employers with 50 or more employees, excluding manufacturers and the tax-exempt organizations described in the bill, that provide their own paid sick leave. Thus, employers will fall into one of three groups: (1) covered by all the bill’s provisions, (2) covered by only the retaliation ban, and (3) exempt from the bill.

How can this come into play? It appears that service workers who ask for paid sick leave in accordance with the act are protected.  For those service workers, employers would be prohibited from retaliating against them.

But any employer that has a paid sick leave policy that applies to employees other than service workers also appear to be covered because employees who request time off pursuant to those policies become protected.  In other words, the new law (when signed) will prohibit employers from retaliating against any employee who uses time pursuant to an employer’s “own paid sick leave policy”.

(For those who think this is a drafting error, there are indications elsewhere that suggest it isn’t.  The legislature defines “retaliatory personnel action” in Section 1(6) as any action taken against an “employee or a service worker”.  Of course, the phrase “service worker” is entirely superfluous because every service worker, by definition, is an employee, but that’s an issue for another day.)

In any event, this section of the public act raises important questions.

What exactly is a “paid sick leave policy”? Suppose an employer doesn’t have a “paid sick leave policy” but a “paid time off” policy which allows for time off for things like sickness.   Is that policy covered?

That could be seen as open question; the employer could argue that because the statute contains an “other paid leave” section in Section 2(c), the legislature was specifically not covering “other paid leave” like paid time off, just paid sick leave policies.  Don’t be surprised, however, if you see an argument the other way that says that because the bill has a remedial effect, it should be read liberally to cover all employer policies that cover time off for sick days.

(Feel free to comment below on this and other provisions.)

What’s the Takeaway for Employers?

If you are an employer with 50 or more employees, it is critical to read this bill and understand the implications.  Revise and amend your personnel policies and seek legal counsel to understand that the policies you have (or create) may open yourself up to coverage under the act.  And understand that the bill’s anti-retaliation provisions are broad and may subject you to a claim at the Department of Labor.

We are just in the early stages of understanding all the implications of this act and I would not be surprised to see some further development of ideas and suggestions in response to this. So stay tuned throughout the summer and fall with other best practices guidance from this bill.

(My thanks to several other employment lawyers in Connecticut who tipped me off to this provision.)