As Connecticut employers of a certain size know, Connecticut implemented Paid Sick Leave recently which affords employees up to five days off a year.   Now, federal contractors (including those in Connecticut) have another layer to deal with. As my colleague Ashley Marshall explains below, paid sick leave will now be a requirement later this year.  Thanks too to my partner Gary Starr who helped pull this together today on short notice.

marshall If we travel back in time to September 2015, President Obama signed Executive Order 13706 (EO) which established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.

Today, the Secretary of Labor has issued regulations to implement President Obama’s Executive Order that established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.  The regulation goes into effect on November 29, 2016.

Here are some of the highlights:

  1. The Final Rule covers new contracts and replacements for expiring contracts with the fdoctorederal government that result from solicitations on or after January 1, 2017.
  2. Employees will accrue 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered federal contract.
  3. Paid sick leave is capped at 56 hours (7 days) in a year.
  4. Employees may use paid sick leave for their own illnesses 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.
  5. The Final Rule allows for coordination with existing paid time off policies and labor agreements
  6. Employers may require that employees using paid sick leave provide certification from a health care provider of the employee’s need for leave if they use 3 or more days of leave consecutively.

A few other tidbits:

  • Whether an employee has to work a certain number of hours  for coverage depends on whether they work “on” a covered contract or “in connection” with a covered contract.
  • 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 particular workweek is not covered.

As with many new benefits, employees may try to take advantage of the new regulation, particularly since no medical excuse needs to be provided until the employee is out of work 3 or more days.  Employers are going to need to be vigilant against abuse.

The Final Rule will be published in the Federal Register September 30, 2016, and will go into effect exactly 60 days after its publication. More information can be found on the U.S. Department of Labor’s website in its Fact Sheet and Overview.

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

Somewhat quietly (at least to me), the Connecticut Department of Labor has issued updated guidance regarding compliance with the state’s Paid Sick Leave law.

But employers who have been following the developments in this area — namely the changes to the law by the legislature — won’t be surprised much by the minor changes that have been made.

The changes to the guidance are essentially in conformity with the revisions to the law.

For example, to determine if an employer is subject to the law, the number of employees that an employer has on the payroll as of October 1st will be used.  It also notes that “radiologic technicians” have been added to the coverage of the law, consistent with the changes.

Nevertheless, if any employers have been using the previous guidance, it’s time to use this useful new resource and discard the prior guidance.

Notably, the CTDOL has also updated their posters for Paid Sick Leave for employers to use.  These new posters should be displayed immediately by employers in place of the old ones.

 

In the hours before the General Assembly’s 2014 session closed, there were a number of bills being watched by employers.  I’ll have an additional recap of the session in the days ahead, but one bill that passed on Wednesday night made a number of small, but important, changes to the state’s Paid Sick Leave law that employers should take note of.

For background on Paid Sick Leave, you can check out some of my prior posts here and here.

House Bill 5269 — which still requires the Governor’s signature — makes several changes that have long been sought.  (For a full recap, see the OLR Bill Analysis here.)  The changes become effective January 1, 2015, when the bill is signed.

First, the bill changes the method for figuring out if a non-manufacturing business employs 50 or more employees.   Under the bill, the company will determine if it satisfies the annual 50-employee threshold based on the number of employees on its payroll for the week containing October 1, rather than the quarterly formula presently used.

Next, the bill prohibits employers from firing, dismissing, or transferring an employee from one job site to another to come under the 50-employee threshold.   Any affected worker can file a complaint with the Labor Commissioner.

The bill also changes the timeframe for accruing paid sick leave and makes it more in line (though not exactly parallel) with the state FMLA law.  As noted by the OLR: “Under current law, employees accrue one hour of sick leave for every 40 hours worked per calendar year. Under the bill, they accrue one hour of paid sick leave for every 40 hours worked during whatever 365-day year the business uses to calculate employee benefits. This allows the employer to start the benefit year on any date, rather than only on January 1.”

And lastly the bill adds radiologic technologists to the list of job categories eligible to accrue and take paid sick leave.

Employers who have been close the 50 employee cut-off should review these rules in particular but all employers should take note of the changes to the accural methods. That should make it easier, in the long run, for employers to track such time.

 

Shortly after passage of the Paid Sick Leave law a few years ago, it became apparent that there were several quirks in the law that would make enforcement and compliance challenging in some places. I highlighted a few issues in a post back then.

Well, the General Assembly has been working on a bill to “fix” these issues.  Senate Bill 1007 passed the chamber last week and focuses on several issues that needed clarification or revision.

Both the CBIA and the Office of Legislative Research have neatly summarized the bill here and here, but there are a few points worth highlighting because passage is expected before the end of the session.

  • The biggest change is that employers would be allowed the administer PSL using the same calendar method as they use for other benefits (like FMLA) instead of a using a January-December model.
  • The current PSL law uses a quarterly model to determine if an employer has reached the 50 or more employee threshold.  The bill would change that.   Under the bill, employers would annually determine if they meet the threshold based on their payroll for the week of October 1, which is consistent with other existing laws.
  • The bill also modifies the law to make it clear that, as the CBIA says, “employees cannot use ‘intermittent’ periods of paid sick leave that would result in disrupting work shifts. (For example, preventing an ambulance driver from taking paid sick leave midway through a shift when her or she may be needed at an emergency.)”  Again, this change isn’t controversial and gives employers a bit of flexibility in dealing with PSL issues.

If you’ve been having trouble with PSL or even if you haven’t, these are notable changes to the law that will impact all eligible employers. Take a look at the complete list of revisions and contact your local counsel with any questions you have about the bill.

If passed, the changes would become effective January 1, 2014.

There’s been little press over what is going on at the Connecticut General Assembly this spring. 

With no big employment law issue (other than minimum wage) dominating the headlines like Paid Sick Leave in the past, you might think that there isn’t much happening.

But as the Connecticut Business and Industry Association highlighted in a post late last week, there are a number of, what it termed, “anti-employer” bills that have already passed committee which, if approved, will make it “much harder and more costly for Connecticut employers to operate successfully in the state.”

Here are three things still to keep an eye on:

  • A parental leave bill that mandates employers provide up to eight hours of leave to attend a child’s qualified school activities is still being considered.   
  • Senate Bill 159 states that employers can’t ask or require employees or job candidates to disclose to the company their social media passwords. As I’ve noted before, however, the bill leaves employers vulnerable in the event the employee uses his or her own personal social media account to violate policy or share inappropriate information. 
  • A minimum wage increase is still up for debate too. 

On a positive note, some needed changes to the existing Paid Sick Leave law have also passed committee. These changes would clean up some of the issues that have been plaguing employers.   One of the changes would make calculating the number of employees an employer has more consistent with how CTFMLA is determined too. 

There’s still a little more than two months left to the session so there’s plenty of time to see how things all plays out.

The title of the post is a bit misleading because the answer to the question is, at this point, unanswerable. 

In what ways do we measure success under Connecticut’s Paid Sick Leave law? The number of employees who have used it? The people who didn’t get sick as a result? The overall flu rate?

Of course, that hasn’t stopped some from trying. Last week, a survey released from the Employment Policies Institute claimed that businesses have taken “labor-saving steps to adapt to the law’s costs — with consequences for employers and employees both.”

Specifically, the survey claimed that some employers “scaled back employee hours, cut wages and canceled plans to expand as a result of the law.”

But even that survey should be taken with a grain of salt since, by its own terms, it may not be “representative” of all employers. 

Unfortunately, it may be some time before we understand the full impact of Paid Sick Leave.  Even now, 20 years after the passage of the FMLA, its benefits are still being debated by employers and the government

What’s an employer to do? In some ways, stop worrying about whether the law works and instead consider lobbying the legislature to tweak the law to make it easier to comply and reduce the administrative burdens associated with the law.

One such change that has been proposed is to allow employers to calculate paid sick leave on something other than a calendar year, much like the FMLA. 

That’s a good start, but there are other solutions as well. Groups like the Connecticut Restaurant Association are focused on this too.

In the meantime, if you need a refresher on Paid Sick Leave, you can check out some prior posts here and here.

While I take a little time off this week for the Jewish holidays, my colleague Mick Lavelle fills in with this great post about the use of paid sick leave by employees who aren’t actually sick. 

When can an employee receive sick leave pay even though the absence is not due to the employee’s own illness?

When the Family and Medical Leave Act first became effective in 1996 , it allowed eligible employees to use paid leave time accumulated under employer policies, such as vacation, medical or sick leave, for an FMLA absence.

But the Connecticut statute (Conn. Gen. Stat. Sec. 31-51LL) went on to say that nothing in the FMLA required an employer to provide paid sick leave in any situation in which the employer would not normally provide such paid leave.

In practice, this meant that employees could use vacation or personal time even if their FMLA absence was for the purpose of caring for a family member, because employers didn’t care what an employee did on “vacation.”

But employees could probably not use sick time if they themselves were not sick, because sick time was traditionally to allow an ill employee to stay home without forfeiting pay, rather than come to work when weak or contagious.

However, in 2003 the Connecticut FMLA was amended (Conn. Gen. Stat. Sec. 31-51pp) to require employers to allow an eligible employee to take up to two weeks of accumulated sick leave pay, even if the FMLA absence was to care for an eligible family member such as a child, spouse or parent (or birth or adoption of a child), rather than the employee’s illness.

In 2010, a statute was passed which required an employer to allow up to 12 days of unpaid leave for victims of family violence, (Conn. Gen. Stat. Sec. 31-51ss), so they could obtain medical or psychological care or counseling, obtain services from a victim services organization, relocate, or participate in civil or criminal proceedings related to the family violence.

This leave was required of all employers with three or more employees, unlike FMLA which generally is applicable to employers of 75 or more employees.

Finally, in the new paid sick leave mandate which started on January 1 of this year for employees who are service workers of an employer with 50 or more employees, mandated paid sick leave can be used to care for a child or spouse or for preventative care for a child or spouse.

In addition, paid sick leave can be used where the employee has been the victim of family violence or sexual assault and needs time off for medical care or counseling, to obtain services from a victim services organization, to relocate, or to participate in civil or criminal proceedings related to the family violence or assault.

So gradually and over time, employers have acquired responsibility for supporting employees in their personal troubles, with excused time off from work, and pay for time off. Like it or not, employers in Connecticut must ensure that their policies reflect these requirements.

If you’d like to learn more about PSL and how to deal with absent workers, Pullman & Comley LLC is sponsoring two free seminars on October 4th and 18th. 

Following up on her post last week recapping part of the Connecticut Bar Association’s Annual Meeting on labor laws, Guest Poster Rita Trivedi is back with highlights from administrative law and employment law portions of the presentation.

Again, my sincere thanks to her for this insightful post. I hope you all find it as interesting as I do.

In my last guest post, I highlighted some of the labor law developments discussed at the Connecticut Bar Association’s Annual Meeting on June 11. But administrative and employment law was certainly not neglected: attendees heard from representatives at the state Department of Labor and the Commission on Human Rights and Opportunities, giving practitioners a peek into issues to watch in the coming months. Highlights below….

The state FMLA should be an active topic in the coming year:

Paid Sick Leave Questions Abound

So, four months in, how is Connecticut Paid Sick Leave (PSL) working out? Well, for towns, not so well as this recent article pointed out.

But as Connecticut employers start running through the issues, some novel and unforseen issues keep popping up. I’ll address one of them here. But before you read it, make sure you understand the basics of the law and review the CTDOL’s guidance on the matter.  Consider this post Advanced PSL for Human Resources.

Here’s the issue:  Employer offers Paid Time Off in lieu of PSL.  But in order to qualify under state law, the PTO must meet the floor established by PSL.  That means, according to the CTDOL, that service workers can carryover up to 40 hours of PTO a year (just like the PSL provisions).

But how does that work for PTO where the employee may be taking time off for vacation, and not specifically, because he or she was sick?

In multiple discussions with the CTDOL over the last few months, it appears that the agency has settled on a straightforward response based on three examples.  (Of course, should you have an employer-specific questions, your best approach is still to contact the CTDOL for clarification.)

Example 1: Employer offers 5 days PTO.  Employee uses all 5 days during the year (for vacation or any other purpose).  Employee does not get to carryover any days.

Example 2: Employer offers 10 days PTO.  Employee uses 5 days PTO (for vacation or any other purpose).  Employee is entitled to carryover 5 PTO days.

Example 3: Employer offers 10 days PTO.  Employee uses 7 for “vacation” and 2 days to care for a sick son.  Employee is only entitled to carryover 1 PTO (not 3).

As always, this post should not be a substitute for legal counsel.  Be sure to consult with your corporate counsel to determine if your company’s PTO policy is in compliance with this new PSL law.