The Connecticut Legislature passed a law requiring employers with fifty (50) or more employees to provide up to a maximum of forty (40) hours, or five days, of paid sick leave to eligible service worker employees.
The law will go into effect on January 1, 2012 and although the law does not grant the Connecticut Department of Labor (“DOL”) any regulatory authority, the DOL has issued guidance to assist managers in implementing the new law, which can be found on the DOL website: http://www.ctdol.state.ct.us/wgwkstnd/SickLeave.htm
Here are some interesting points about the law to keep in mind:
- Don’t assume that you are exempt if you are a non-profit or a municipality.
The law applies to most employers with fifty (50) or more employees, including the state and municipalities. Although there are exemptions for certain manufacturers and non-profit organizations, such exemptions are limited. For example, only “nationally chartered” non-profits are exempt and the DOL is interpreting this to mean that only the YWCA and YMCA are exempt.
- Don’t assume that your employee is not a “service worker.”
Although the law applies to “service worker” employees only, the term is broadly defined and is based on the federal DOL wage classification definitions; do not assume that your employee is not covered simply because he or she does not fit the typical meaning of a “service worker”.
- Review and modify your attendance policies.
Even if you provide adequate paid sick leave, several of the provisions will likely affect most attendance policies. For example, the law limits when an employer can request documentation. A covered employer may not ask for proof of illness from an employee until they have been absent for three consecutive work days. (Note: this is not three work days in general, but three consecutive days that the employee is scheduled to work.) Thus, if the employee is scheduled to work Monday, Tuesday and Friday of a week, you can only request documentation after they have been absent for all three days.
- Your current Paid Time Off (“PTO”) system may already comply with the law even if you don’t specifically provide for paid sick days.
The law requires covered employers to provide eligible employees with up to forty (40) hours of paid sick leave per year, which the employee accrues at a rate of one hour for every forty (40) hours worked. However, this does not necessarily mean you have to change your entire accrual or PTO system. Employers may substitute their own PTO system in lieu of this accrual requirement if the other benefit policies provide for the requisite number of paid days off and the employee can use such accrual for the purposes described in the law.
- Collective Bargaining Agreements in effect on 1/1/2012 are exempt.
However, if any CBA provides less than the requisite benefits, employers will have a duty to negotiate such benefits in accordance with the law when the current CBA expiries. Notably, some of the Act’s provisions as implemented may raise potential preemption issues with the National Labor Relations Act and it is an issue to keep in mind going forward.
- Don’t assume that paid sick leave is just for actual employee illness.
The law is broad and covers more than just illnesses. For example, an employee’s need to take time off to relocate due to his or her own domestic violence situation is an appropriate use of paid sick time under the law.
- Employee Notice.
You are required to provide notice to employees of this new right, which can be satisfied by posting the DOL poster, in Spanish and English. This notice is now available at the DOL website at:
http://www.ctdol.state.ct.us/wgwkstnd/SickLeave.htm
- Beware of the law’s civil penalties and retaliation provisions.
Employers can face civil penalties of up to $100 per violation if the leave is not properly afforded and up to $500 per violation if the Labor Commissioner finds that an employer has retaliated against an employee for requesting or using paid sick leave. An employer can also be ordered to comply with other relief orders, including payment of back wages and rehiring.
- Disciplining employees for using their accrued sick time is prohibited.
If your attendance policy currently provides for discipline if an individual shows a pattern of absences, this may violate the Act if the employee is properly using accrued paid sick time. Employers are somewhat limited in their ability to determine whether an employee is using sick time for proper purposes because they cannot request documentation until three consecutive absences have accrued.
- You are not without recourse for abuse of paid sick leave time.
The limits imposed by the law do not entirely tie an employer’s hands. Although not stated in the law, the DOL has indicated that an employer can continue to apply more stringent attendance rules to paid sick days provided in excess of the minimum amount afforded by law. For example, if you provide covered employees with eleven paid sick days, you may still be able to require documentation earlier than three consecutive absences or discipline an employee for chromic absenteeism even if this is not allowed under the law. However, you can only apply these more stringent rules to the extra six days you provide. You still cannot apply these attendance rules that conflict with the Act to the initial five days afforded under the law.
These are merely general notes on the law. There are always caveats to be aware of. In addition, as the law actually goes into effect, new issues are sure to arise and DOL may modify their guidance accordingly. Please contact us to discuss any particular questions you may have with regard to this law’s upcoming implementation and to discuss how your current attendance policy may need to be modified to comport with these new requirements.
