Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements.  The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities.  One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already.  Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down.  Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass. 

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here.  My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.

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Much has been made of a bill (Senate Bill 217) in the Connecticut General Assembly that would create a paid sick leave provision for employees. Lost in the debate is the fact that Connecticut already has a paid sick leave provision that works in tandem with the Connecticut Family & Medical Leave Act, as I reported in January.  Before the General Assembly debates the bill, they would be wise to review this provision and see how it has been working, rather than creating a whole new system from scratch.

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We've had an illness in the family recently and it reminded me of a topic that most employers (and I would dare say attorneys) are probably unfamiliar with in Connecticut.  Specifically, Connecticut's FMLA laws allow an employee to use sick days not simply for themselves, but to care for a family member in certain circumstances.  The law also allows for the use of sick days for the birth or adoption of a child.

This is unique to Connecticut -- no comparable federal law exists -- but this law is so underpublicized or misunderstood that I would guess that many employers simply don't follow it.  After all, sick days are normally viewed as days to take when the employee is sick, not for someone else.  This provision is also fairly recent (having passed just a few years ago) so that may add to the misunderstanding.

So where is this provision found (or buried, depending on your perspective)?  Conn. Gen. Stat. Sec. 31-51pp(c)(1). That section reads as follows:

(c) (1) It shall be a violation of sections 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave ... to attend to a serious health condition of a son or daughter, spouse or parent of the employee, or for the birth or adoption of a son or daughter of the employee. For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured.

So, a few key points arise from this section:

• The employee may take up to two weeks paid sick leave -- if they have accumulated it.  If the employees don't have the time to begin with, the employer is under no obligation to give the paid sick leave.
• The sick leave is not applicable to take care of family members with ordinary illnesses such as colds, etc. Rather, it is only for a "serious health condition" as defined by the FMLA. 
  
• The employees still need to abide by the other requirements of FMLA for such leave, including providing documentation that the family member does indeed have a serious health condition.
• If the employer does not have a written policy of sick days but only, for example, gives employees vacation days, then this provision would appear not to apply.  However, if the policy states that vacation days can be used for an employee's illness, then the employer is open to an argument that this provision may apply.
• The sick leave can also be taken for the birth or adoption of a child.
• Although Sec. 31-51pp(c)(2) doesn't implicitly state this, this provision is related to the Connecticut FMLA. Thus, if the employee does not qualify for FMLA in the first place, this provision would not appear to apply.

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With the signing of the National Defense Authorization Act for FY 2008 (NDAA) earlier this week, the new amendments to the FMLA for care of military members are now effective immediately.  For a full text of the FMLA, with the new amendments, the Department of Labor has posted it here.

For a refresher to my prior posts, the Act now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Its important to note that the caregiver protection provides more than double what is provided when an employee takes "traditional" FMLA leave.  Employees are entitled to only one 26-week leave period to care for a wounded servicemember during the employee’s employment. The leave may be taken on an intermittent or reduced-schedule basis, but all 26 weeks must be used during a single 12-month period. 

The Act also provides up to 12 weeks of leave for employees who have a family member called up to or engaged in active military duty.  In detail, the Act provides up to 12 weeks of FMLA leave for an employee with a spouse, son, daughter or parent who: (1) is on active duty in the Armed Forces in support of a contingency operation; or (2) has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. A "contingency operation" is an action or operation against an opposing military force.

An employee may take active duty leave for "any qualifying exigency" related to the family member’s call-up, and the leave may commence as soon as an individual receives notification of being called to active duty. The term "any qualifying exigency" was not defined, and will likely be clarified in future regulations published by the Department of Labor ("DOL").

Recall too that the normal definitions of the FMLA still apply. Thus, the employer must employ at least 50 part-time or full-time employees for each working day during 20 or more workweeks of the current or previous calendar year to be subject to the statute. In order to be eligible for FMLA leave for example, employees must still have at least 12 months of service with the employer  and must have worked at least 1,250 hours during the 12 months preceding the start date of the leave

Because these changes expand the ways that an employee may be entitled to protected leave, employers should familiarize themselves with the law and also review their obligations under USERRA as well.  Employers can consider updating their policies and procedures and also ensuring that their postings (such as a USERRA DOL poster) are current as well. Notifying human resources of this new law will also be critical to ensuring proper compliance with this law. 

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The Connecticut Department of Labor has just posted a form for employers to fill out online regarding their experiences with the use of FMLA for the 2007 calendar year.  Filling out this form is required by state regulation for employers who are subject to the Act.

The Department's website has the details:

If your company employed 75 or more employees in Connecticut as of October 1, 2006 you are subject to the Connecticut Family and Medical Leave Act and as such your response is needed for the Labor Commissioner's report. Kindly take a moment to complete this form ant transmit it back to us before April 1, 2008. Your cooperation is greatly appreciated.

What the website does not specify is that the use of this form is actually mandated by state regulations. Specifically, Conn. Reg. Sec. 31-51qq-48 states that

(b) Employers shall report the following data for each calendar year for which they are subject to the Act: 

(1) Employer’s name;
(2) Number of employees;
(3) Number of family leaves approved for birth or adoption, and duration;
(4) Number of family leaves approved for family illness, and duration;
(5) Number of medical leaves approved, and duration;
(6) Any other information the Commissioner determines necessary to assess the current experience of employers with medical and family leaves of absence. Any family or medical leave approved under the Act which includes less than five days unpaid leave need not be reported to the Labor Department.

Although the language of the regulation suggests that compliance is mandatory, there is no indication in the regulation for the "punishment" for failure to comply.   Nevertheless, there also appears to be no "harm" in filling out the form either.  The goal of this form and report appears to be simply to track the progress and use of the state FMLA laws. 

Employers may receive notice of this form via the mail later this winter, but it is an easy item to get a head start on.  Once the numbers are compiled, the form can likely be filled out in just a few minutes.

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We've had an illness in the family recently and it reminded me of a topic that most employers (and I would dare say attorneys) are probably unfamiliar with in Connecticut.  Specifically, Connecticut's FMLA laws allow an employee to use sick days not simply for themselves, but to care for a family member in certain circumstances.  The law also allows for the use of sick days for the birth or adoption of a child.

This is unique to Connecticut -- no comparable federal law exists -- but this law is so underpublicized or misunderstood that I would guess that many employers simply don't follow it.  After all, sick days are normally viewed as days to take when the employee is sick, not for someone else.  This provision is also fairly recent (having passed just a few years ago) so that may add to the misunderstanding.

So where is this provision found (or buried, depending on your perspective)?  Conn. Gen. Stat. Sec. 31-51pp(c)(1). That section reads as follows:

(c) (1) It shall be a violation of sections 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave ... to attend to a serious health condition of a son or daughter, spouse or parent of the employee, or for the birth or adoption of a son or daughter of the employee. For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured.

So, a few key points arise from this section:

• The employee may take up to two weeks paid sick leave -- if they have accumulated it.  If the employees don't have the time to begin with, the employer is under no obligation to give the paid sick leave.
• The sick leave is not applicable to take care of family members with ordinary illnesses such as colds, etc. Rather, it is only for a "serious health condition" as defined by the FMLA. 
  
• The employees still need to abide by the other requirements of FMLA for such leave, including providing documentation that the family member does indeed have a serious health condition.
• If the employer does not have a written policy of sick days but only, for example, gives employees vacation days, then this provision would appear not to apply.  However, if the policy states that vacation days can be used for an employee's illness, then the employer is open to an argument that this provision may apply.
• The sick leave can also be taken for the birth or adoption of a child.
• Although Sec. 31-51pp(c)(2) doesn't implicitly state this, this provision is related to the Connecticut FMLA. Thus, if the employee does not qualify for FMLA in the first place, this provision would not appear to apply.

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Suppose an employee takes maternity leave from a position. Due to health complications, that leave is extended multiple times (past the 12 or 16 weeks required under FMLA or CT FMLA).  The employee remains an employee pursuant to a short-term disability plan. When the employee is ultimately medically cleared to work, does the employer need to reinstate the employee?

An summary order (i.e. an opinion that is NOT binding in future cases) from the Second Circuit this morning suggests that the employer does not need to reinstate the employee and that the employer's actions do not violate Title VII. 

The Second Circuit in Infante v. Ambac Financial Group, suggests that this is a fairly easy call:

[The employer] avers that it could not rely on the possibility of [the employee]’s return from her leave because she had repeatedly extended her anticipated dates of return-- sometimes on one or two business days’ notice. [The employer] thus faced uncertainty about when, if ever, [the employee] would return, as well as the increasing work demands of [employee]’s former accounting unit. After [the employee] had extended her return date by more than six weeks, [the employer] decided to interview replacements. As of that time, [the employee]’s leave of absence was outside the scope of the twelve-week job protection provided by the Family and Medical Leave Act, 29 U.S.C. § 27 2612 (“FMLA”). [The employer]’s short-term disability leave policy contains no similar job protection provision.

So [the employer] was under no legal or contractual obligation to hold [the employee]’s job open for her, and was entitled to interview (and hire) replacement candidates whom it deemed more qualified for the role.

The opinion suggests that courts will not be afraid to read the statutory limits on protected leave strictly; 12 weeks under FMLA is 12 weeks -- not 20.  And for employers, the case is a good reminder that upon expiration of FMLA leave, the employer can and should explore filling open positions as business needs dictate.

That said, there are -- of course -- cautionary notes. For example, this case does not address the trickier issue of whether a disabled worker out on leave is allowed to have extended leave as a "reasonable accommodation" under the ADA.  Thus, whenever employees are out on extended leave, an employer should review all the laws that may apply (not simply FMLA) to ensure their compliance with various legal obligations.  Also, employers should also review their internal policies to ensure that they are following what their policies say about leaves of absences.

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Many times, clients and acquaintances call looking for the "basics" of various materials. Although I'm happy to oblige, some of the "basics" materials are already out there on the Internet. In fact, the government typically has a good summaries of various laws prepared for everyday use. While these documents should not be relied upon entirely, they provide a good foundation for being able to conduct "issue-spotting" -- an important trait to have for both attorneys and HR professionals.

Here are four documents or websites that are among the more helpful I've seen to understand the basics of various state and federal employment laws.

• Basic Guide to the National Labor Relations Act (NLRA) -  The Office of General Counsel for the NLRB has put together a fairly comprehensive 38 page summary of the "basics" of NLRA. What does this mean? Essentially, for the non-lawyers out there, it is a good nuts and bolts document about various U.S. labor laws.  You can download it clicking here, or go to the NLRB website directly. 
  
• The Basics of Background Checks - The Federal Trade Commission has put together a short description of what employers should know about the Fair Credit Reporting Act (FCRA).  The FTC also has a variety of other links about FCRA on a webpage devoted to the act. 
  
• The Basics of Whether an Employee is Exempt or Non-Exempt - The Connecticut Department of Labor has a noteworthy worksheet for employers to use to determine whether certain employees should be classified as exempt or non-exempt (in other words, determining the employee's eligibility for overtime).  The worksheet notes that an employee must satisfy the duties and salary tests and cautions that the form should not be used as a substitute for legal advice, which is sound advice indeed.  The CTDOL website also has a summary of wage and hour laws for employers as well. 
  
• The Basics of the State and Federal Family and Medical Leave Act - Employers in Connecticut should be familiar with the fact that state FMLA laws differ in some notable ways from the federal laws. Figuring out which law applies when is a challenging issue.  The Connecticut Department of Labor, however, has put out a comparison of the two laws with answers to some frequently asked questions about it.   For many employers, understanding Connecticut's rule of providing 16 weeks of leave over a 2 year period and its interaction with the federal rule of 12 weeks in a one year period is crucial to avoiding issues down the road.

 Feel free to comment or add your own favorites on various "basics" documents.

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