Yesterday, I discussed the carryover rule that requires employers to allow service workers to carry over up to five days of paid sick leave each year.
But a loyal blog reader posed the following question to me: Suppose you are an employer that voluntarily offers 12 paid time off (PTO) days at the start of every calendar year to your employees. In that case, are you still required to offer 5 carryover days (in addition to the 12 that you offer) to your employees even though you are otherwise compliant with the act?
Rather than opine on the subject in a vacuum, I forwarded the question onto Heidi Lane, who has been among the Connecticut Department of Labor staff members who have been drafting the guidance and overseeing the Department’s response. She was very kind to respond and my sincere thanks to her and the DOL staff for being so open to discussions on this law.
We had quite a back and forth discussion of the answer and she authorized her response to be used here. In slightly condensed form, here were some of her responses. You won’t find this in the guidance (and, to be sure, its merely advisory), but for employers dealing with the issues, this is important to understand the CTDOL’s position:
The law never requires an employer who provides 5 or more paid days (or 40 hours) off that can be used for paid sick leave to ever provide more than that. So, taking your example, if an employer provides 12 PTO days and the service worker uses them all, then there is nothing left to carry over. Using another example, if the service worker uses 5 days for vacation and has 7 of the 12 days remaining at the end of the year, then the service worker has 5 days of paid sick leave that s/he never used and can carry over. However, if the service worker used the 5 days for paid sick, then the law would not require the employer to allow the service worker to carry over the remaining 7 PTO days (that would be the employer’s option).
Her answer prompted a followup question from me: Is it your contention that the employer needs to find out if the employee is using his/her paid time off because of illness? And if the employer doesn’t ask, then service worker gets to carryover 5 days? She responded as follows:
Yes, we believe that an employer would need to find out whether they are using the time for paid sick leave, vacation…. I know that this will be problematic but we have had many discussions on this. If the employer gives the service worker 12 days of PTO and s/he uses 10 days for vacation, s/he still has 2 days available for paid sick leave.
If an employer gives a bucket of 12 days of PTO on January 1 and replenishes it every January first, then the above situation would not apply.
In my response back to her, I noted that such an interpretation could be at odds with the law itself. In the relevant section, an employer is “deemed to be in compliance” merely if it “offers any other paid leave…that (1) may be used for the purposes of section 3 of this act, and (2) is accrued in total at a rate equal to or greater than the rate described in subsections (a) and (b) of this section.” In my mind, the “may be used” language is different from “is used” and onlyly requires an employer who has a PTO policy to allow service workers to use PTO for a reason authorized by the Act.
She replied by stating that my interpretation was adopted by some others, but the Department has taken a different position:
We think the problem with your interpretation is that you are not permitting someone to use the PTO leave for a paid sick leave. The law provides that an employer is “deemed to be in compliance” if it gives service workers the opportunity to use PTO for paid sick leave. So it seems to us that if a service worker uses 5 days in January for a vacation, and then is penalized for using additional days for paid sick leave (i.e., days 6, 7 and 8), the employer has not met the requirements of the law. The law dictates that service workers should be allowed to use paid sick leave without fear of retribution, whether it be a point in an attendance policy or more serious discipline. If the service worker is penalized for using the time for paid sick leave (i.e., days 6, 7 and 8), then he really isn’t being given the opportunity to use the other PTO time for paid sick leave.
We both agreed that this is perhaps one of the issues that may — sometime down the road — end up in court. But that, of course, isn’t helpful for employers now.
For employers who use PTO policies, you may have to consider asking “service workers” to designate whether their PTO is due to a “sickness” or another qualifying reason for the absence under the act. Failure to do so and failure to offer a carryover policy may turn an otherwise compliant employer into one that is out of compliance, at least according to the CTDOL. If the employer allows the employee to carryover 5 unused PTO days a year — or offers the worker generous PTO at the start of each calendar year — then these tweaks may alleviate the risk.
As always, employers should seek their preferred legal counsel to make sure that your particular policy and practice is compliant with this new law.