Today marks Rosh Hashanah, the Jewish New Year and one of the holiest days of the Jewish year.

But it’s a day of business to many.

What should employers be doing for employees, though, that are celebrating the day?

There are actually a few different ways to answer the question.

The first answer, looking just at the legal obligations, is that the employer must provide an accommodation under Title VII.

But that standard is different than an ADA analysis.

Instead, the law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

Thus, giving an employee a day off to observe the holiday will, in many instances, be deemed to be a reasonable accommodation to the employee.

So that answers the legal obligation, but what else should an employer be doing?

Well, are you e-mailing that employee on their “day off”? Are you scheduling important meetings, even though you know that employee can’t attend?

Those things aren’t necessarily illegal.

And they aren’t always a bad idea either. Life moves on and conflicts are inevitable.

But a bit of sensitivity can help minimize those issues and some foresight can avoid the issue altogether.

I know that when a meeting gets scheduled, my own practice is just remind people of the holiday and leave it at that.

It happens. I just don’t get riled up about it

But I know others who when asked to attend something on holidays respond by saying: “How would you feel if I called you on Christmas?”

That only gets to part of the issue. Rather, pestering the employee out on a holiday, sends the wrong message to employees that their religious observances are something to be ignored. Meetings can go on but what can be put off for the day the employee is absent?

So before you decide to send multiple e-mails to your co-worker, or someone else observing the holiday, insisting on a response particularly when you know they don’t want to respond, think about the implications further.  It really reflects more on you than them.

An e-mail is an e-mail.

Except when it means something more.

Like many of you, I long for vacations.  I like to plan them out in advance and then spend the intervening weeks and months plotting and scheming.

What restaurants and new foods should we try? What attractions should we try to visit? And while that private tour my Facebook friend recommended sounds neat and all, what can we really afford to do?

Having just returned from a trip overseas, I can attest that vacations are good for the soul too.  They provide time with friends and family and a much needed perspective.  There is simply more to life than the constant barrage of news that seems to infiltrate our lives nowadays.

But where do vacations fit in the legal schemes employers set up in Connecticut?

Well, for one thing, vacations are not mandated by any state or federal law.  Employers are free to decide whether or not they want to give their employees any vacation days.  But many employers recognize that offering vacation days makes jobs more attractive and also leads to happier employees in the long run too.

That said, Connecticut law basically leaves it to the employers to set up policies — and then requires them to follow them.  The point this truly becomes an issue occurs when an employee leaves employment and still has vacation days that have accrued.

The key law here is Conn. Gen. Stat. Sec. 31-76k, which states:

If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-71i, inclusive.

In plain English, the law dictates that employers follow their policies and practices.  Don’t want to pay your employees accrued vacation time upon termination? The law says that is ok, but only if your policies say that in advance.

As you craft your vacation policies, here are some other questions for an employer to consider:

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Vacations are great. Encourage your employees to use them.  Just make sure your company’s policies are clear enough that you won’t be dealing with headaches later on.

healI’d much rather write about a legal topic than a personal one, but before I talk about the logistics of handling an employee who has exhausted their paid time off, I wanted to share a brief personal update.

Last November, I shared with you my wife’s diagnosis and treatment for cancer.  Because she is a fairly private person, I haven’t really posted an update since.  I’m pleased, however, to report that my wife has recovered well from surgery and the original cancer diagnosis.  We are now in the stage where you wait for each followup scan with a bit of anxiety — never quite feeling comfortable enough to declare yourself “cancer-free” but not worried about day-to-day survival.  Which is another way of saying that we’re doing ok right now.  Thank you all for your continued support.

Ok, back to business.

Suppose you run a business that has about 30 employees total — all in Connecticut. You’re not covered by the FMLA or CTFMLA or even the Connecticut Paid Sick Leave Act.  Charlie — your employee — has been battling cancer the last six months and has just used up his four weeks paid time off.  He is still dealing with the occasional chemotherapy treatment, but your policies — such as they are — don’t say anything about getting any more time off.

What are your obligations as an employer?

Well, you shouldn’t assume that you may not be covered at all by state or federal law.  The Americans with Disabilities Act requires that a reasonable accommodation be made for disabled employees — and that could mean that in some circumstances, an unpaid leave of absence may be suitable.  State law may have a similar imposition in some instances.

In the EEOC’s guidance on the topic, it states:

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.  An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.  For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

And indeed, that may be a solution that you stumble to regardless. But the fact remains that there are limits to the rights of an employee in this situation.  Charlie may not have the right to additional time off without losing his job.

So legally, an employer may decide (and again, consult with your lawyer about the specifics as not all cases are created equally) that it is within its rights to terminate the employee who has exhausted his paid time off.

But suppose you WANTED to give the employee additional time off — could you? Sure. You might give the employee time off unpaid but say that his job isn’t necessarily protected.

You may have to worry about the precedent this sets, but failure to treat your employee with additional courtesy may lead to bigger troubles of morale in the workplace and beyond.  On the other hand, giving an employee additional time off may get yourself some additional loyalty from that employee when he returns healthy.

It is these sorts of employment law questions that are the trickiest because while you may have some legal rights as an employer, you may feel that you have an obligation (moral perhaps?) to act otherwise.  For those, think carefully through each decision and seek appropriate legal help to guide you through it.  I’ve covered other issues with cancer in the workplace here, for example.

vacationLast week was the first time in the seven year history of this blog that no blog posts were uploaded. Why?

Vacation.

It’s been a long cold winter and my wife and I were able to corral our kids for some much needed warm-weather rest and relaxation — after a very challenging year.

As it turns out, way too many American didn’t take any vacation days last year — whether by choice or necessity.

Vacation days have a way of making their way into litigation too. There was this story of an employee who was fired for accruing too much vacation days.

And stories of those employees who went on vacation after their boss told them to cancel their plans.  And were fired.

A few companies are now moving to an “unlimited” vacation policy where employees can take as much as they need. But only 3 percent of companies have adopted such a practice.

And it works best for those in upper management who have a tough time taking vacation.

Which leads me to this point: Vacation actually improves productivity.  Indeed, a study by Oxford Economics in 2014, found the following:

Our research finds that employers and employees perceive significant benefits to taking PTO. For the employer, benefits include more productive, focused and dedicated employees. For employees, time away from work reduces stress with notable benefits to relationships and health. Most employees report coming back to work feeling renewed and refreshed, and ready to focus on work.

However, despite most workers earning paid time off—and an apparently supportive corporate environment—many US workers do not use all of this entitled time. More than 4 of 10 employees finished 2013 with unused PTO.

So, after this long winter, encourage your employees to take their vacation time. It’ll help both y our employees AND your company in the long run.

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.

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.

Not All Issues in Paid Sick Leave Law are Clear

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.

We continue with our series of posts (see prior posts here, here, here, and here) on the new Paid Sick Leave Guidance issued by the Connecticut Department of Labor earlier this month. Today’s post focuses on the “carryover” rules.

Another issue that the Paid Sick Leave addresses is the “carryover” rules — or how much accrued paid sick days an employee can carryover each year.

In the past, some businesses that have offered paid sick days have allowed employees to carryover those paid sick days from year to year — sometimes in an unlimited fashion.  In time, this became an employer’s de-facto short-term disability plan.  But as insurance offerings have become more sophisticated, employers also began to realize that this could also lead to potential abuse (and a big payout at the end.).  Thus, employers began to limit the amount of time that may be carried over.

The new paid sick leave law recognized the potential for abuse too by only allowing service workers to carryover up to 40 hours (5 days) worth of time each year.  The CTDOL guidance explains this rule a little further and whether employers can pay employees for their unused paid leave.

Service workers shall be entitled to carryover up to 40 hours of any unused accrued paid sick leave at the end of each calendar year. Service workers are limited to carry over 40 hours each year, regardless of how many hours they have accumulated. Some employers either require or provide their employees with the option of being paid out at the end of the year for any unused paid leave. Because the law provides that service workers “shall be entitled” to carry over any unused paid sick leave, employers cannot require service workers to take the pay out. However, employers may offer the option of pay out in lieu of carry over to service workers as long it is voluntary.

Because the act doesn’t go into effect until January 1, 2012, these carryover provisions won’t apply until the calendar year 2013 starts.

For employers who provide paid time off in lieu of paid sick leave, the guidance still does not specify that the carryover provisions that the employer uses must be the same as the law, but a reading of the law suggests that is the case.  Thus, employers should review their PTO policies to determine if they are compliance with these carryover sections.

With today being Columbus Day, the following  is a reprint of an earlier column I wrote about the holiday.  Enjoy Columbus Day and these unseasonably warm temperatures.

Over the last few years, I’ve been running a popular post about Columbus Day and the origins of the work holiday in Connecticut. Indeed, it has its foundation as a federal holiday and is listed in the United States Code (5 U.S.C. Sec. 6103).

First landing of Columbus

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of the federal law.   So, if you work for a federal or state employer in human resources, or otherwise, you are likely going to have today off.

But it is also one of those holidays that private employers increasingly have decided do not merit a vacation day.  A survey from a few years ago showed that just  seven percent of employers in California, for example, give the day off to their employees.

A common question that arises, however, is why? Why do employees for private companies not have to close on a day that has been designated by the federal government as a national holiday?

The answer is actually quite simple: Because Congress didn’t cover private employers in the law.  And state law doesn’t mandate any requirements on private employers either.  And so, while employees may complaint (perhaps rightly) about the difficulty of some child-care arrangements for some closed schools or otherwise, employer continue to have discretion about the days that it designates as holidays.

Some employers have created their own work-arounds, allowing employees to take 1-3 “floating holidays” for days like this (or other types of holidays, like Yom Kippur or Three Kings Day).  That’s a sensible practice. But regardless, these types of policies should be discussed with employees so everyone knows what day is a holiday and what day isn’t.

Happy Independence Day

With July 4th weekend upon us, I wanted to first wish all of you a Happy Independence Day!

In the meantime, for those who are still looking for things to work on this weekend, I refer back to post in 2008 that talked about summer-related employment law issues.  Here are a few highlights:

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use “Paid Time Off”, while other companies specifically designate that employees can use vacation time.  But can the employer do anything to regulate it? Yes, particularly the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Summer Parties and Office Dress – As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that “work” also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees?

Hopefully, you’ll all be able to enjoy the great weather and the holiday.  Even employment law professionals and human resources managers need a vacation day.

Summer's Here
Visits to the Doctor's Office May be Covered

UPDATED: June 9, 2011

Paid Sick Leave has officially passed the Connecticut General Assembly and awaits a formal signature by Governor Malloy (who has indicated he will sign the measure).  There’s a lot of little things in the bill.

Here are the basics of what you need to know as an employer (assuming it is signed as is).  I’ll have more information in upcoming posts from time to time.  Note that this is only a summary of some of the key provisions. Employers will want to consult with appropriate legal counsel to determine the bill’s specific application to your specific company.

When Will It Be Effective?

The bill is effective January 1, 2012.

What “Employers” Are Covered?

The definition of an employer is a company that employers 50 or more people in Connecticut in any one quarter of the prior year.

Notably, the definition of “employer” does not include “any business establishment classified in sector 31, 32 or 33 in the North American Industrial Classification System” which is believed to be many manufacturers. It also does not include “any nationally chartered organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986…that provides all of the following services: Recreation, child care and education.” That exception is understood to include only the YMCA (though there may be a few out there that might fall within that limited exception.

In other words, many manufacturers and the YMCA are probably not covered at all under the act, even if they have workers who would otherwise qualify.

What Employees Will Be Covered?

Only “service workers” will be covered.  Moreover, those service workers must be paid on an hourly basis and be viewed as “non-exempt” from overtime rules. “Day and temporary workers” are also specifically excluded from coverage.

Who Is a “Service Worker”?

As defined by the bill, a service worker means someone means “an employee primarily engaged in an occupation with one of the following broad or detailed occupation code numbers and titles, as defined by the federal Bureau of Labor Statistics Standard Occupational Classification system or any successor system”, For a full list of codes, see this post.

How Does Paid Sick Leave Accrue?

Service workers get 1 hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours (5 business days).  It appears that overtime hours worked also must be included in the “time worked” calculation.  Employees can carry over up to 5 days paid sick leave each year.

When Can Service Workers Begin to Take Paid Sick Leave?

After the service worker has worked 680 hours (about 4 months, absent any overtime), though the employer can agree to move up that date.

What Can the Service Worker Take Paid Time Off For?

The service worker can take paid time off for the following:

  • For the worker’s own: 1) illness, injury or health condition, 2) medical diagnosis, care or treatment of a service worker’s mental illness or physical illness, injury or health condition, or 3) preventative medical care for a service worker;
  • For all of the above for the worker’s own child or spouse.

The service worker can also take paid time off if that worker is a a victim of family violence or sexual assault. In such cases, the worker can seek time off 1) for medical care or psychological or other counseling for physical or psychological injury or disability, 2) to obtain services from a victim services organization, 3) to relocate due to such family violence or sexual assault, or 4) to participate in any civil or criminal proceedings related to or resulting from such family violence or sexual assault.

How is an Employer “Deemed” to be in Compliance Without Formally Implementing This New Law?

An employer is deemed in compliance if it offers “any other paid leave” (i.e. paid time off (PTO), vacation time, etc.) that is at least equal to the benefit offered by the statute (in other words, five days off at full pay.). The PTO that the employer has must be able to be used by the service worker for the one of the reasons outlined above (i.e. for their own illness or that of their spouse etc.)

Can the Employer Require Notice?

Yes, the employer can require advance notice of up to seven days, if the leave is forseeable. If it is not forseeable, the employer can require the service worker to give notice as soon as practicable.

If paid sick leave is for 3 or more consecutive days, the employer can require “reasonable documentation” that such leave is being taken for a permitted purpose. Documentation signed by a health care provider who is treating the service worker or the service worker’s child or spouse indicating the need for the number of days of such leave shall be considered “reasonable documentation”.

Can an Employee Discipline an Service Worker Who Takes Sick Leave For a Non-Permitted Purpose?

Yes. The bill specifically provides that employers can discipline service workers who take leave for a purpose other than those specified under the bill.

Can Employees Sue if They Are Not Permitted to Take Sick Leave?

No, at least not yet.  Service workers who believe their rights have been violated may raise a complaint to the Department of Labor.  Ultimately, the employee may appeal the decision to Connecticut State Court, but cannot bring a claim directly there.

Do Employers Have to Provide Any Notices to Service Workers?

Absolutely.

At the time of hire, the employer must notify each service worker that they have a right to sick leave. Employers must also specify the amount of sick leave provided and the terms under which sick leave may be used. The employer must also inform that worker that retaliation by the employer for using sick leave is prohibited by law and the service worker may file a complaint with the Department of Labor for any violation.

In order to meet this requirement, employers may simply display a post in a conspicuous place that has all the information specified above in both English and Spanish.

What About the Anti-Retaliation Provisions?

Importantly, they apply to all employees who take leave pursuant to an employer’s “Paid Sick Leave policy” or to employees who take leave pursuant to the bill (presumably, service workers.)  For more information, see this post.

What Should Employers Do Now?

  1. Understand the provisions and whether you are covered.
  2. Assess your job descriptions and determine what jobs are covered.
  3. Review any existing policies that you have and modify them so service workers who want leave for the permitted purposes will be allowed to do so.
  4. Revise any offer letters or, in the alternative, create a poster that meets the requirements and have that poster up by January 1, 2012.

Not to be too repetitive, but this law promises to be quite a headache in terms of implementation. Take the time now to understand its application so when January 1st hits, you can be prepared.