Earlier today, my firm held a webinar featuring a conversation with Heidi Lane of the Connecticut Department of Labor to talk about the upcoming changes to the state FMLA law effective January 1, 2022. My thanks to Ms. Lane for participating and sharing her insights.
You can view the entire webinar here (and I’d encourage you to do so) but here are a few key takeaways to share:
- A lot has been made regarding the state’s new paid leave law. Employers have been (or should have been) withholding a small percentage of employees’ salaries to contribute to this fund. The CT Paid Leave Authority will be administering this and this will provide your employees with compensation starting January 1, 2022 if they qualify for leave under the paid leave laws. This law is income replacement, not job protection.
- That paid leave law is entirely separate from the amendments that have been made to the Connecticut Family & Medical Leave Act. The CTFMLA law provides for protected unpaid leave. This law is managed by the Connecticut Department of Labor and was the subject of the webinar. (Note further that the federal family and medical law may also apply to an employer. An employee may be eligible for income replacement for a leave but not eligible for job protection. So as discussed below, employers need to understand the differences in the laws.
- Formerly, CTFMLA provided certain employees with 16 weeks of leave over a two year period. The new law (again, effective January 1, 2022) now provides up to 12 weeks every 12 month period and an employee may take up to 2 additional weeks of leave for a serious health condition resulting in incapacitation that occurs during a pregnancy. (This could include so called “morning sickness” during the pregnancy.)
- Notably, according to the CTDOL, the employee has to be returned to the same position, or if not available, an equivalent position. If there’s been a true reorganization while the employee is out, then an equivalent position may be appropriate but temporary assignments of an employee’s job duties must be reversed such that the employee should get his or her original position back.
- The new law applies to all employers with one or more employees. But it still excludes, municipalities, local or regional boards of education, non-public elementary or secondary schools. BUT, the federal FMLA applies to all public agencies, regardless of the number of employees. And employers with 50 or more employees must still follow federal FMLA.
- In addition to broadening who is eligible, the triggers to the leave also change. The definition of the covered “family members” with serious health conditions that an employee is caring for has expanded greatly to include: sons or daughters of any age, grandparents, grandchildren, siblings (and siblings in law), and those who are “equivalent” to those family relationships. (Your nice neighbor likely isn’t enough.) Federal FMLA does not include such a broad leave for “family members” — just spouse, sons, daughters or parent.
- Employees will also be eligible for CTFMLA after having worked for three months for an employer with no hours worked minimum. Again, this is a big change from the prior law and a big difference from federal FMLA.
- Employees can also require employees to use available PTO but an employee can choose to keep up to 2 weeks of accrued PTO.
Ms. Lane indicated that revised regulations will be forthcoming and that it is their hope to be released in November (with a comment period). These regulations will address what information, for example, an employee might need to show to get covered for care of an “equivalent” family member.
In addition, there is a transition period in which employees who are already on leave this year will get some leave in 2022. The DOL has provided guidance (which is merely suggestions and not the force of a regulation or law) on this transition period here.
As a result of the changes to CTFMLA, there may be multiple laws in place that employers need to consider for any leave: federal FMLA, Connecticut Paid Leave, and CTFMLA to name a few. While there is overlap at times, there are times when one law may apply but not others. For example, an employee may be eligible for income replacement during time off when an employee starts but not be eligible for job protection until after the first three months.
Suffice to say that consulting with employment counsel here is going to be critical. While the CTDOL will have new forms available to help, implementing this law will be a true challenge. Time to get to work.