As the dust continues to settle from the General Assembly, bills that didn’t get a lot of press beforehand are continuing to come into the light.

One of them is new Public Act 19-95, which was just signed by Governor Lamont yesterday.

The bill treats being a member of the “Civil Air Patrol” as a new protected class and prohibits an employer from discriminating against an employee because the employee is absent from work responding to some emergencies or training as a civil air patrol member.

And how is the Civil Air Patrol defined? It’s defined as the civilian auxiliary of the U.S. Air Force.  There are approximately 61,000 youth and adult members of the CAP nationwide, according to the most recent statistics, though 26,000 of them are cadet members between the ages of 12 and 20.

But before employers start to wonder if they have a lot of employees working for them in the Civil Air Patrol – the answer is probably not.  In Connecticut, only 365 people are listed as being senior members of the CAP.

Nevertheless, the legislative recap of the bill spells out the three main areas it covers. It:

  1. establishes specific notice and verification requirements for employees who are civil patrol members;
  2. specifies that its provisions must not be construed to prohibit an employer from (a) treating the employee’s absence as unpaid time off or (b) complying with a collective bargaining agreement or employee benefit plan entered into before October 1, 2019; and
  3. specifically allows an aggrieved employee to sue to recover damages and equitable relief in the Superior Court.

There are also a few state specific provisions that will apply to state employees only including the provision of sick leave.  You can download the whole bill here.

Regardless, all employees have until October 31, 2019, the date of employment, or the date on which the employee joins the civil air patrol (whichever is later) to notify the employer that he or she may be called to participate in training or assist in an emergency.

This bill will only affect a very small segment of the population; but given that an employee can sue for a violation of this law, employers would be wise to consider whether it has any employees that might fall within its purview.  And as always, contacting your employment law attorney about this would always be a good idea as well.

The new law becomes effective October 1, 2019.

With Independence Day nearly upon us (and with many offices on skeleton crews this week), I thought I would take a very brief look back at a case that has particular relevance to the Grand Old Flag and displays of patriotism in the workplace.

If you’ve never read about Cotto v. United Technologies Corp., you should. It’s a long-forgotten Connecticut Supreme Court case from 1999 that is a cornerstone opinion in the area of free speech in the private workplace.

The basic facts are as follows:

  • The plaintiff was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

Legal? Well, the Connecticut Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case. “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff did not allege that:

  • he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;
  • he was directed to affix the flag to his person or to his private property;  or
  • he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.

Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.

In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, suppose on July 4th, all employees are directed to recite and stand for the Pledge of Allegiance when it is played in the employer’s stores.  And suppose that an employee was fired for refusing to do so.

Given the language in this case, could the employee allege that he or she “was directed to manifest his [or her] patriotism by saluting the flag or otherwise affirming his [or her] allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but those who are unfamiliar with our historical precedent would be wise to understand it.

As for my plans, I think I’ll find my favorite Independence Day movie on Netflix (or Amazon Prime, or somewhere).  

Happy Independence Day to all.

Update: Governor Lamont vetoed this bill on July 12, 2019.  

Bear with me because this is a story about how a little provision slipped in at the last minute and buried deep in a innocuously-titled bill will have big implications for the restaurant industry in Connecticut.

You might have missed House Bill 5001 (now Public Act 19-198) titled “AN ACT ESTABLISHING A TASK FORCE TO STUDY WORKFORCE TRAINING NEEDS IN THE STATE.”

There was no legal analysis of the bill by the the Office of Legislative Research because “it does not analyze Special Acts.”  This must just be a bill about a task force, right? Well not exactly.

Through an amendment that was adopted and passed by the House unanimously at 7:07p on the last day of the General Assembly session, two little noticed sections — Section 5 and 7 — were added to this bill.  Three hours later, the Senate also passed it unanimously.

These provisions don’t have anything to do with a study on workforce training needs and everything to do with restaurants.

I haven’t found anyone that has yet reported on these provisions but for the reasons that will become apparent below, this is helpful news to restaurants and will impact class-action cases that are going on right now in Connecticut.

Section 7 of the bill contains the first provision to be aware of. Indeed, this provision will impact the very types of wage/hour claims I talked about in my previous post here.

Sec. 7. (Effective from passage and applicable to actions pending on or filed on or after said date) Notwithstanding the provisions of chapter 54 of the general statutes, section 31-62-E4 of the regulations of Connecticut state agencies is repealed.

And just like that, a provision that was central to the enforcement of state wage and hour laws and impacting the determination of whether a tip credit could be used for waitstaff (and the determination of whether incidental non-service work destroys the tip credit) will disappear.  And note that it applies to all “actions pending or filed on or after” the date the governor signs it.

Regulation Section 31-62-E4 states as follows:

If an employee performs both service and non-service duties, and the time spent on each is definitely segregated and so recorded, the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category. If an employee performs both service and non-service duties and the time spent on each cannot be definitely segregated and so recorded, or is not definitely segregated and so recorded. no allowances for gratuities may be applied as part of the minimum fair wage.

Does getting rid of the regulation mean that employer can’t take a tip credit? Or does it just mean the guidance will be silent at this point?

It’s hard to get into a lot of detail in a simple blog post but to understand the significance potentially of this rule and the elimination of it, recall the 2017 Connecticut Supreme Court case of Amaral Bros., Inc. v. Department of Labor (which I recapped in a post here)  that this particular regulation has “existed in essentially [its] present form since 1958.”

And the court noted in that same opinion that by “retaining those [regulations] that distinguish between service and non-service restaurant employees, the legislature signaled its implicit approval of the tip credit regulations.”

But now that the legislature has repealed this regulation, what does that mean for the rest of the statute? Is this the start of an effort to undercut the tip credit rule? What does this mean to the determination of service vs. non-service duties that I talked about here and whether minimum wage must be paid to non-service duties that are incidental to the work performed by waitstaff?

Here is where another portion of the bill (Section 5) that was also added in the final hours of the session comes into play and answers some of those questions; it is hardly a poison pill to restaurants.

And it might be even bigger than Section 7 at least for now.  Section 5 reads:

Not later than December 31, 2019, the Labor Commissioner shall post on the eRegulations System a notice of intent to adopt regulations, in accordance with the provisions of chapter 54 of the general statutes, concerning allowances for gratuities permitted or applied as part of the minimum fair wage pursuant to sections 31-58 and 31-60 of the general statutes. The Labor Commissioner shall consult with representatives of the restaurant industry prior to posting such notice and shall consider the provisions of the Fair Labor Standards Act, 29 USC 203(m)(2) and 29 CFR 531.56, and include guidance provided by the United States Department of Labor Wage and Hour Division in Field Assistance Bulletin No. 2019-2, dated February 15, 2019, and in Wage and Hour Division Opinion Letter FLSA 2018-27, dated November 8, 2018, regarding such allowances.

Now we’re getting some place.  In fact, this provision helps to clarify things more than it’s seemingly innocuous language might indicate.  Because if you look at the U.S. Department of Labor’s Opinion Letter and Field Assistance Bulletin here, it states that:

“an employer may take a tip credit for any duties that an employee performs in a tipped occupation that are related to that occupation and either  performed contemporaneous with the tip producing activities or for a reasonable time immediately before or after the tipped activities. To clarify this, the Department has issued WHD Opinion Letter FLSA 2018-27—formally rescinding its previous interpretation setting a 20 percent limit on related, non-tipped duties—and revised FOH 30d00(f) to reflect WHD’s interpretation of 29 C.F.R. § 531.56(e) as provided in the opinion letter.

Now bear with me even further as we go down this rabbit hole.

If you recall, it used to be the USDOL’s position that if a tipped employee spent 20% or more of his/her time performing “related” duties, the restaurant couldn’t take a tip credit for any time spent on those duties. This was referred to as the “80/20” rule.

But the guidance released in November 2018 and then confirmed in the FAB in February eliminated this rule at least at a federal level.  “[The] WHD will no longer prohibit an employer from taking a tip credit based on the amount of time an employee spends performing duties related to a tip-producing occupation that are performed contemporaneously with direct customer-service duties or for a reasonable time immediately before or after performing such direct-service duties.”

So by referencing this USDOL guidance and bulletin, it appears that the legislature is now requesting that the CTDOL adopt similar regulations. And by eliminating the existing regulation, it seems to be removing a basis for some lawsuits against restaurants — at least for now.  This could potentially be a game-changer for some lawsuits that using the service/non-service issue as the basis of seeking big monetary claims.

What else could this mean for Connecticut? Overall, it should mean that help may on the way for restaurants struggling to separate out service and non-service duties.  A Connecticut DOL position consistent with the USDOL position will be helpful for some clarity and consistency.

Because there was no debate at the legislature and this provision seems to have been slipped in at the last minute, it’s hard to know exactly what the thinking was behind it or how the Connecticut Department of Labor will respond.  We’ll have to see how this all plays out in the next few months.  Given that this passed unanimously in the legislature, it seems likely that Governor Lamont will sign this as well.

For now, restaurants need to consult with their local counsel as soon as possible to talk about the implications of this new law and how it may impact their businesses.

(Post has been updated to note a legislative development.)

Running a restaurant is hard. It’s long hours, short tempers and fickle customers.

But add in those wage & hour laws? What a headache.

And there are lawyers out there who know it. In fact, there are some that rest their business model on seeking out restaurant workers that can be used as representative plaintiffs in class actions.  Moreover, they use the internet — quite legitimately in most cases — to find them.

Indeed, in New York, one enterprising firm has put up a whole website entitled WaiterPay.com to educate workers on their rights.  

If that weren’t enough, the United States and the Connecticut Department of Labor both have divisions that continue to investigate aggressively these industries for violations.

I’ve been following some of the new lawsuits that have been filed against restaurants and have notice a trend — we’re seeing more lawsuits claiming that waitstaff doing non-service work haven’t been paid minimum wage.

Let’s back up.  What am I talking about?

Under some conditions, restaurants can take a credit towards minimum wage for some employees who receive gratuities.  According to the CTDOL, in order for an employee to be eligible for a tip credit, he or she must be engaged in performing “service” duties. What duties apply?

  • Taking food and beverage orders from patrons.
  • Bringing the orders to the table or booth.
  • Cleaning up the immediate area of service.
  • Filling the condiment containers at the tables or booths.
  • Vacuuming their own immediate service area.
  • Replacing the table setting at their own service area.

But on the flip-side, employers, according to the CTDOL, may not take a tip credit during the time which any employee is performing non-service duties such as the following:

  • Cleaning the rest rooms.
  • Preparing food.
  • Washing dishes.
  • Host or Hostess work.
  • General set-up work before the restaurant opens.
  • Kitchen clean-up.
  • General cleaning work.
  • Waiting on take-out customers.

The CTDOL Wage Order also prohibits the taking of a tip credit on “countergirls, counterwaitresses, countermen, counterwaiters.”

And compounding matters more: Those employees serving food or beverage to patrons seated at tables or booths also are not subject to the tip credit if they do not customarily receive gratuities.

How can an employer comply if its staff does both service and non-service duties? (Somewhat) easily – by figuring out the amount of time spent on each.

That might mean that for the hour than an waiter works setting up stations before the restaurant opens (say from 4-5 p.m.), the employee should receive at least minimum wage. Then for the next 4 hours waiting on tables, the employer can take a tip credit of 31 percent of minimum wage.

But even that has a caveat — the time by the employee should typically be segregated on the time record in order for an employer to take advantage of that.

What happens if you don’t? The penalty – at least the one sought by lawyers representing waitstaff – may be that the restaurant will not be allowed to take any of the tip credit, entitling the employee to minimum wage for all hours work and a doubling of damages beyond that.  Add attorneys fees and interest, and you can get a picture of a number with a whole bunch of zeros after it.

BUT (and there’s always a “but”, from lawyers, right?), maybe this isn’t the rule after all.

Because buried deep in a bill that just passed the legislature, is a provision that may just make the whole thing moot.

More on that in my next post.

Do you ever watch a television series or see a Broadway musical and think about the employment law issues that are being raised?

(C’mon, I can’t be the only one out there.)

I was reminded of my inability to separate out fact from fiction when I went to see the Broadway-hit “Waitress” at Bushnell Performing Arts Center in Hartford recently.  It’s been a long-running production, so what was there not to like?

(And to be clear: The production is first rate, with great singers and cute sets.)

But one of the female waitresses gets hit on by her boss (and then engages in a relationship with him) and, well, isn’t anyone aware of the sexual harassment laws in this country?

The truth is that pop culture’s relationship with employment laws has always been a bit hazy.

Think back to all the workplace comedies that have graced our television screens.  Co-workers and supervisors argue, insult, flirt, and proposition others.   What we would find in real-life to be creepy, somehow turns into romantic when presented on the television.

Some will go back to “Taxi”, and Danny Devito’s insulting (but lovable?) dispatcher.  Or Sam and Diane’s workplace relationship in “Cheers” leading to passionate kisses in the bar’s back offices.  And don’t even get me started on “Mystic Pizza” in Connecticut.

Others will look at “The Office” and use “That’s What She Said” as the perfect saying for an office. (Long live the “That’s What She Said” employment law blog that ended a glorious run in 2013.)

Back in my, ahem, younger days, I used to watch “L.A. Law” and “Ally McBeal” all the time.  (Ok, after the first few seasons, they kinda went downhill but still.)

In one, a partner dies in his office and a young partner (Arnie Becker) immediately claims “dibs on his office”.  In another, it showed a law office where a young associate would prep for a trial the next day by sharing a pint of ice cream with their colleague in their bedroom.

Both were fun and escapist and didn’t really show what being a lawyer was really about.

And so, I keep coming back to the “Waitress” show.  To some, the show presents a compelling view of feminism. To others, it doesn’t.

Should we try to seek employment law lessons from pop culture (and, to be clear, I’ve sought a bunch of them over the years here, here and here, for example) or does pop culture’s ambivalence with employment laws reflect society as well?

I’m not sure of the answer but I do know that I should probably listen to the advice of a friend more — “Stop Thinking So Much Like a Lawyer and Just Enjoy the Show.”

I’ll try.

At the stroke of midnight last night, the 2019 General Assembly came to a close.

I think it’s fair to say that 2019 will go down in history not for the number of bills impacting employers, but for the breadth of the few that passed.

I’ve recapped the bills in some prior posts, but here’s what employers need to know (thus far) about this legislative session.

MINIMUM WAGE

The Governor has already signed the biggest increase to minimum wage we’ve seen in many years.

The new schedule is as follows:

  • $11.00 on October 1, 2019
  • $12.00 on September 1, 2020
  • $13.00 on August 1, 2021
  • $14.00 on July 1, 2022
  • $15.00 on June 1, 2023

And understand that there will be future increases automatically after that time.  The state did not make changes to the tip credit but did make changes to training wages. My full post about it is here. 

PAID FMLA

Starting January 1, 2022, the state’s FMLA law is being expanded significantly in several ways. First, it will apply to nearly all employers. Second, employees will only need to work for an employer for three months (and no hours minimum) to be eligible. Third, employees will get 12 weeks leave — and be reimbursed through a new program established by the state. Fourth, employees may take leave for the serious health condition of a greater scope of family members including those whose “close association” is like a family member.

One issue that hasn’t been addressed as of yet: How does this law interact with the Paid Sick Leave law already in the books? I’ll save that for another blog post.

Again, I’ve recapped the new law in a separate post here.  The Governor is expected to sign the bill shortly.

SEXUAL HARASSMENT IN THE WORKPLACE and CHANGES TO DISCRIMINATION LAWS

New training requirements will go into effect starting October 1, 2019.  Within a year, all supervisors will need to be trained regarding the law on sexual harassment and all employees (at employers with three or more employees) will also need to be trained too.

But the new law goes far beyond that to require notices to be e-mailed to employees, to changes to the deadline for filing discrimination complaints, to the types of damages available for discrimination complaints.

Again, I’ve recapped the new law in a separate post here.

BAN ON NON-COMPETE AGREEMENT FOR HOME HEALTH WORKERS

The state’s budget includes a provision that bans the use of non-compete agreements for homemaker, companion,
or home health services under certain conditions. The provision would make such contracts void and unenforceable. The ban will go into effect immediately once the budget is formally signed by the Governor. For more on the provision, see my prior post here. 

WHISTLEBLOWER PROTECTIONS

A bill that has received scant attention thus far, but that passed on consent last night, will expand whistleblower protections to cover entities that receive state financial assistance under the commerce and
economic and community development laws (“financial aid recipients”). It does so by making them “large state contractors” under the law.  You can read the legislative recap here. 

CONCLUSION

As the dust settles from a whirlwind last few days of the legislative session, the above bills represent significant changes that all employers in Connecticut will need to pay attention to.

While some provisions may not go into effect for a while, the training requirements in particular will demand employers attention on a more immediate basis. Training all employees at various companies will be time-consuming and, in some instances, costly.

If you’re a Connecticut employer, new requirements regarding training and posting — as well as changes to the underlying anti-discrimination law — should be a must-read.

On Tuesday, June 4, 2019, the General Assembly passed a series of revisions to Senate Bill 3, which itself passed over the weekend. Together, these series of changes (S.B. 1111 and S.B. 3) will impact employers of all sizes and cases at the CHRO. 

In essence, you had a bill that was amended after it already passed. Rather than get into what was in the original bill vs. final bill, I thought it might be helpful just to recap what is in the final version of the bills, as combined.

Governor Lamont is expected to sign these bills in the next week or so.

To be clear, this recap should not be a substitute for legal advice and this recap only addresses some of the most relevant private employer provisions; there’s some provisions in there regarding EEO officers for state agencies that are beyond the scope of this recap. Credit should also be given to the state’s OLR Bill Analysis as well. 

TRAINING

Currently, employers with at least 50 employees are required to give their supervisors two hours of training on state and federal sexual harassment laws and remedies.

The new law will require employers of all sizes to give training to supervisors by October 1, 2020 (or within six months of their assumption of supervisory duties, after that time).

For employers with 3 or more employees, the training must also be given to all other employees also by October 1, 2020 (or within six months of hire, after that time.)

In both instances, the training must be updated every ten years by employers, though it doesn’t seem to be the same two hours — just a “supplemental” update.  Also, any employee (including supervisor) trained since October 1, 2018 is exempt from being “retrained” a second time.

The bill requires CHRO to develop a free online training video or other interactive method. If that’s done on time, employers will have to give the training within six months of an employee’s start date.

If employers don’t provide training, it will now be a “discriminatory practice” that may allow employees to bring an action in the CHRO (or court).  The fine for failing to provide training will be $750.

NOTICES TO EMPLOYEES

The new law (piggybacking on existing law which requires a notice be posted regarding sexual harassment) will require employers of three or more employees to send a copy of this to employees via e-mail within 3 months of hire — so long as the employee has an e-mail address (company-provided or personal).  The subject line should be titled “Sexual Harassment Policy” or words very similar to that effect.  If the employer doesn’t give employees an e-mail address, the information must be included on its website.  If the CHRO develops something on their own, the employer can just provide this link.

The fine for failing to do so will be $750 as well.

CORRECTIVE ACTION IN SEXUAL HARASSMENT CLAIMS

When an employer takes prompt remedial action in response to a claim of sexual harassment, the new law requires that the employer can only modify the target’s condition of employment upon agreement in writing from the employee.  That means, transferring an employee to a different department can only be done upon written consent.

BUT, even if the employer did not obtain the written consent, the bill still allows the CHRO to find that the employer’s corrective action was reasonable and not “to the detriment” to the complainant, based on the evidence.

TIMEFRAME FOR FILING DISCRIMINATION AND HARASSMENT CLAIMS Continue Reading The Definitive Employer Guide to Connecticut’s New Anti-Sexual Harassment Law

Buried deep in the budget (page 417 of 567) that was passed by the state House last night is this provision:

Sec. 305. (NEW) (Effective from passage) For purposes of this section “covenant not to compete” means any contract or agreement that restricts the right of an individual to provide homemaker, companion or home health services (1) in any geographic area of the state for any period of time, or (2) to a specific individual. Any covenant not to compete is against public policy and shall be void and unenforceable.

It’s so buried that I had to read it a few times to make sense of it. Was it part of some other law? What is it related to? Why no public hearing on this?

But all you can find is the bill analysis that essentially says the same thing:

The bill prohibits contracts for provision of homemaker, companion, or home health services that restrict the right of an individual to provide such services in any geographic area of the state for any period of time or to a specific person (i.e., a “covenant not to compete”). Under the bill, such covenants are against public policy, void, and unenforceable. 

What’s strange about this provision is that it looks nothing like other industry specific bans on non-compete agreements.

For example, Conn. Gen. Stat. Sec. 31-50b, creates a private cause of action if an employer enters into a barred agreement with a broadcast employee.  The state budget provision in Section 305 just seems to throw such contracts out.

And for security guards, the provision in Conn. Gen. Stat. Sec. 31-50a is entirely different too.  That law states:

No employer may require any person employed in the classification 339032 of the standard occupational classification system of the Bureau of Labor Statistics of the United States Department of Labor to enter into an agreement prohibiting such person from engaging in the same or a similar job, at the same location at which the employer employs such person, for another employer or as a self-employed person, unless the employer proves that such person has obtained trade secrets, as defined in subsection (d) of section 35-51, of the employer.

The state budget also doesn’t define what “homemaker, companion or home health services” are.  It also says that it is barred as to any “specific individual”, leaving open the question of whether an individual includes a company or just actual persons.    And is the use of a restrictive covenant like a non-solicitation provision still ok to use? It would appear so though the “any contract that restricts the right” language leaves a lot to be desired.

Provisions like this one — inserted into a budget document, rather than a standalone bill — do a disservice to all.  And it’ll be left to the lawyers and courts to sort out the potential mess arising from a provision like this.

 

The so-called “Time’s Up” bill that would make major changes to the sexual harassment and discrimination laws in the state — including adding new training requirements — went through final passage at the House on Saturday.  But don’t start changing your policies just yet.

Various news outlets are reporting that a “fix” bill — that is, a bill that will make changes to the original bill — is set to be released today (Monday).  The backers are trying to find another bill — a “vehicle” — where these fixes can be added on to.

What’s going to be changed? As of early Monday morning, it’s still unclear. 

However, if you want a recap of what’s already passed, see my prior post here.

Regardless, the bill that has already passed will require employers to give all employees at least two hours of sexual harassment prevention training; the CHRO will be tasked with coming up with a video program that employers will be able to make available for free to reduce the burden on employers.

In other legislative developments, Governor Lamont signed a bill that will make changes to the state’s minimum wage laws. Those changes start to happen later this year — forcing companies to make changes on the fly to their budget plans.

In addition, as I posted over the weekend, Paid FMLA passed as well and awaits the Governor’s signature. Although some minor changes are expected, none of the additional amendments are expected to change the underlying FMLA requirements that I recapped on Saturday.

The legislative session is winding down this week. Additional employment law-related bills are still floating out there. So stay tuned.

 

Late Friday, the House passed the Paid Family and Medical Leave Act bill that passed the Senate earlier in May.  Governor Lamont has indicated that he will sign the measure. As such, big changes are coming, though some of the biggest changes are are still a few years off.

You can review the bill here; and you can review the bill analysis here.  

A good portion of the (very long) bill concerns the set up and running of a new family leave insurance program that will provide wage replacement for employees who take leave.   I’m not going to recap that.

Similarly, there’s a lot on the benefit programs that can be established by employers and the state.  Generally, employees who take FMLA leave will get some type of wage replacement for up to 12 weeks (with two additional weeks of benefits for a serious health condition that results in incapacitation during pregnancy.)  Employers can also provide benefits through a private plan, which must provide their employees with at least the same level of benefits, under the same conditions and employee costs, as the new insurance program.

But for employers that have been running FMLA leaves in Connecticut (or, for that matter, NOT running FMLA leaves because it didn’t apply to them), the biggest set of changes is yet to come.

Starting January 1, 2022, FMLA will now apply to all private sector employers with at least one employee; currently, only employers with 75 or more employees are covered (though federal FMLA applies to employers with 50 or more employees).

Here are just some of the other major changes:

  • Currently, employees need at least 12 months and 1000 work hours to be eligible. Under the new measure, employees who have just three months of employment with no minimum requirement for hours worked will be eligible.
  • Currently, employees could receive a maximum of 16 weeks of leave over 24 months. Under the new bill, employees are eligible for 12 weeks of a leave over a 12 month period with an additional two weeks due to a serious health condition that results in incapacitation during pregnancy.
  • Currently, employers can require an employee taking leave to use employer-provided paid leave; the bill allows an employees to maintain at least two weeks of paid leave.
  • Currently, employees can only take FMLA leave to care for a serious health condition of a spouse, child, or parent. The new bill expands the family members to include the employee’s siblings, parent-in-laws, grandparents, grandchildren,  or “an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships”.  The Department of Labor will be charged with coming up with regulations on that aspect.

Employers have some time to incorporate these provisions into their workplace. But there’s little doubt that this bill is going to be a brand new world for employers who have never had to manage FMLA claims.  Asking for health care certifications — and more — is going to be a monumental challenge for small employers.  While there’s over 30 months to get ready, my early guess is that there will still be loads of employers who are unprepared for this.

Between now and then, of course, we’ll have lots to share.  For now, employers should just be aware — Paid FMLA leave, and changes to FMLA leave, are coming.