Employers Should Prepare for New Paid Sick Leave Law
The paid sick leave law (Senate Bill 913, Public Act 11-52) is set to become effective on January 1, 2012. The law will make Connecticut the first state to mandate paid sick leave for employees. Employers are well advised to become familiar with the law even if they already provide greater paid time off than required by the law, as there are other aspect of the law that apply more broadly. The provisions of the law are detailed below:
Who the Law Applies To
The law applies to employers with 50 or more employees in any one quarter of the prior year, determined on Jan. 1, annually. The term “employer” includes “any person, firm, business, educational institution, nonprofit agency, corporation, LLC, or other entity . . .” but exempts all manufacturing businesses (as classified in sectors 31, 32, and 33 of the North American Industrial Classification System) and any “nationally chartered organization nonprofit tax exempt organization” that provides recreation, child care and education. The second exemption appears to apply only to the YMCA.
Only “service workers” are covered. Service worker means any employee primarily engaged in an occupation within one of the 68 federal Standard Occupational Classification Systems titles named in the Bill. The classifications identified include various food service positions (e.g. bartender, cook, waiter), various healthcare positions (e.g. RNs, home health aides, social workers, dental assistants), office/administrative positions (e.g. office clerk, administrative support, data entry) and retail jobs (e.g. cashier, receptionist), among many others. Perhaps most applicable to our clients, the classifications include individuals that could be employed by a BOE (e.g. librarians, crossing guards, security guards, office and administrative support, bus drivers), as well as private healthcare facilities.
Significantly, to be covered, the service worker must be paid on an hourly basis or non-exempt from the FLSA. Additionally, the law exempts temporary and day workers, defined as those performing work for the employer on a per diem basis or an occasional or irregular basis, whether paid by the employer or an employment agency.
What Benefits Must Be Provided
Commencing Jan. 1, 2012 (or the employee’s date of hire if hired after Jan. 1, 2012) covered employers must provide to eligible service workers paid sick leave accruing at the rate of 1 hour for every 40 hours worked, up to 5 days total in a calendar year.
Employees do not become eligible to take accrued time until they have worked 680 hours and have averaged at least 10 hours per week during the most recently completed calendar quarter.
Carryover of Unused Time
Up to 40 hours of accrued time may be carried over for a single calendar year, but employers are not required to allow workers to use more than 40 hours of leave in any year.
Compensation for use of paid sick leave must be the greater of either the worker’s “normal hourly wage” or the minimum wage. If the normal wage varies, it is calculated as the average hourly wage in the pay period prior to leave.
Benefit Flexibility and Donation of Benefits
The law allows, but does not require, employers to permit workers to switch shifts and/or work extra hours in lieu of using accrued sick leave. The different shifts/extra hours must be agreed to by the employer and employee and during the same or following pay period as the sick leave. Employers can allow workers to donate any unused time to their co-workers.
Separation from Service
Unused leave does not have to be paid out to the employee upon separation (unless otherwise required by the employer’s policy). Where an employee is rehired after a break in service, whether voluntary or involuntary, the employee is not entitled to use any sick leave accrued before the separation and begins accruing leave time anew in accordance with the law.
Use of Accrued Time
Employees must be allowed to use the time for his/her or a spouse’s or child’s:
- Injury, illness, or health condition;
- Medical diagnosis, care or treatment of a mental or physical illness, injury or health condition;
- Preventative medical care;
- For a variety of reasons related to where the worker is a victim of family violence or sexual assault.
An employer does not have to permit the use of accrued time for any reasons not specified in the law. The law expressly states that it does not prohibit an employer from taking disciplinary actions against a service worker who uses paid sick leave provided under the law for purposes other than those specified.
Notice & Documentation
Where the need to use paid sick leave is foreseeable, employers may require advanced notice up to 7 days prior to the date leave is to begin. If the need is not foreseeable, employers may require notice as soon as practicable. If leave is for 3 or more consecutive days, the employer can require reasonable documentation verifying the purpose of the leave.
Employers Already Providing Equal or Greater Paid Leave Benefits
Employers that already provide at least 5 days of paid leave, whether for vacation, sick days, or personal days, that can be used for the same purposes and that accrues at least as quickly will be deemed to comply with the law. The law does not preempt the terms of any union contract or diminish the rights of any employee pursuant to a union contract.
The law requires each covered employer to provide notice to employees at the time of hiring that:
- The employee is entitled to paid sick leave, the amount provided, and the terms under which it can be used;
- The employer cannot retaliate against him/her for requesting or using sick leave; and
- The employee can file a complaint with the labor commissioner for any violation.
Notably, an employer can comply with this notice requirement by displaying a poster with the required information in English and Spanish in a conspicuous place, accessible to employees, at the employer’s place of business. The labor commissioner is authorized to adopt regulations establishing additional notice requirement.
The law prohibits employers from taking adverse employment actions against an employee because the employee: (1) requested or used paid sick leave as provided by the law or in accordance with the employer’s policy; or (2) filed a complaint with the labor commissioner alleging the employer violated the law.
Significantly, the retaliation provision is broader than the leave provisions and applies to all employees, rather than just the enumerated service workers.
There is no independent cause of action for violation. Rather, employee complaints must be directed to the Connecticut Department of Labor. The commissioner may hold a hearing and, upon a finding by a preponderance of the evidence that the employer violated the law, may issue civil penalties. Ordinary violations will subject the employer to a $100 civil penalty and violations of the retaliation ban will result in a $500 penalty.
Additionally, the commissioner can order other appropriate relief, such as rehiring, payment of back wages, or reinstatement of benefits. Aggrieved parties can appeal the commissioner’s decisions to the Superior Court.
What to do Next
Covered employers are encouraged to review and assess their job descriptions to determine what jobs, if any, are impacted (i.e., what employees are “service workers”) and to ensure that employees are properly classified as exempt or non-exempt. Similarly, covered employers should review and modify their leave policy to allow service workers who are already provided at least 5 paid leave days to use such leave for all permitted purposes under the law and to be certain that the leave they provide accrues at least as quickly as provided for by the law. Further, to the extent an employer is covered and employs service employees, the employer should consider determining how it wishes to handle the non-mandatory aspects contained within the law, such as flexible use of benefits and donation of time.