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.

Five years ago during summer, I posted a series of questions for employers to think about during the summer season.  I figured it was time to take a look back at them and update them.

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.  The latest trend is the “unlimited” vacation policy that says that the employee can take time off so long as the job is getting done.   But can the employer do anything to regulate these vacation Considerations?

Yes, particularly if 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?

Friday Sick Days — There’s nothing quite as intoxicating in the summer as the long three-day weekend.  And, with that comes “Friday Fever” .  The symptoms? An otherwise healthy employee calling in on a beautiful sunny Friday.  What are some questions to consider?

  • Does it make sense to change to a simple “Paid Time Off” policy that doesn’t distinguish between vacation and sick time?
  • What documentation do you ask employees for when out on sick days?
  • Do you pay employees for a paid holiday, like Memorial Day, if the employee has been absent the day before or after such a holiday, without approval?

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?

These questions are by no means exhaustive, nor are the topics, but with summer in full swing, it’s another way to get through the dog days of summer.

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.

Power is still out to big parts of the state, but here in Hartford, power is on and life continues. And so must the blog…

Back in June, when the Connecticut General Assembly approved of the paid sick leave bill, I was quick to note that the retaliation provisions in the bill seemed to apply to all employers, not just those covered by underlying provisions.

Sick Days are coming

It now appears that others are coming around to the same conclusion.

In last week’s Connecticut Law Tribune, an article titled, “Sleeper Issue In Sick Leave Bill – Workplace Retaliation” finally gets around to it.  Notably, it cites back to my original article.

It also cites confirmation from the Connecticut Department of Labor that I have been reading the broad anti-retaliation provisions correctly:

Connecticut Labor Department lawyer Heidi Lane said her office has been studying the new law from the start. “We’ve been examining it pretty much word for word, and in section 5 of the bill, it says, ‘No employer shall take retaliatory personnel action against an employee.’ Throughout the entire law, it’s always using the term ‘service worker.’ So where they’re actually saying ‘employee,’ they mean everyone.”

One of the questions raised, however, is how can the CTDOL enforce the anti-retaliation provision of a sick leave policy, when a particular employer may not have to have a policy because they do not fall within the fact otherwise.  The CTDOL says that it will use the employer’s existing policies.

A company need not have a paid sick leave policy expressed in so many words, Lane explained. Many employers give employees a set number of “PTO” or paid time off hours, for family emergencies or any reason at all. By implication, this includes time off for illness, and is a form of paid sick leave.

There’s a little over four months remaining until the new law goes into effect. If you and your company haven’t started thinking about the changes you may or may not need to make to your existing policies and practices, consider this article another incentive to do so.