A sharply divided Connecticut legislature recently passed a bill that will make Connecticut the first state in the nation to require employers with 50 or more employees to provide up to 40 hours of paid sick leave each calendar year to nonexempt, hourly service workers. On July 1, 2011, Governor Malloy signed the bill -- Public Act No. 11-52 (the "Act") -- into law, and it will become effective January 1, 2012. In addition to mandating paid sick leave, the new law creates a cause of action for damages and penalties if an employer retaliates or discriminates against an employee for requesting or using paid sick leave under the Act or in accordance with an employer's own paid sick leave policy.
Employers Covered by the Act
The Act applies to employers with 50 or more employees in the State of Connecticut, except it exempts entities engaged in the manufacturing sector (NAICS 31-33) and nationally chartered 501(c)(3) nonprofit organizations that provide recreation, child care and education services.
Service Workers Eligible for Paid Leave
A "service worker" entitled to paid sick leave is defined as an hourly or nonexempt employee who is engaged in one of 68 job titles identified by federal occupational code within the Act. The covered occupations include individuals working in food service, including those who prepare and serve food (e.g., cooks, waiters and waitresses, bartenders, counter workers, dishwashers, hosts and hostesses); healthcare and social services workers, including registered nurses, home health aides, and dental hygienists; security guards; janitors; bellhops and concierges; bank tellers; cashiers and retail salespersons; barbers/hairstylists; clerical and office support employees including secretaries, administrative assistants, mail clerks, messengers, data entry/processing workers, and office support workers; bus drivers, taxi drivers and chauffeurs; and many other similar jobs. Day and temporary workers, however, are not covered under the law.
Service Workers Accrue up to Five Days of Paid Sick Leave Each Calendar Year
Beginning January 1, 2012, covered service workers will accrue paid sick leave at a rate of one hour for each 40 hours worked, up to a maximum of 40 hours of paid leave in a calendar year. Furthermore, the service worker must be permitted to carry over up to forty hours of accrued but unused paid sick leave from one current calendar year to the next.
Based on the language in the statute, it appears that when calculating the number of hours worked, employers must include overtime hours. However, paid holidays and vacation are generally not considered hours worked.
Circumstances Where Paid Sick Leave May Be Used
Upon completion of an employee's 680th hour of employment following the effective date of the law, service employees will be entitled to use accrued paid sick leave.
Service employees may use paid sick leave for the following reasons:
- The employee's (a) own illness, injury or health condition, (b) medical diagnosis of his/her mental or physical illness, injury or health condition, or (c) preventative medical care;
- The employee's child's (a) illness, injury or health condition, (b) medical diagnosis of a mental or physical illness, injury or health condition, or (c) preventative medical care; and
- The employee's spouse's (a) illness, injury or health condition, (b) medical diagnosis of a mental or physical illness, injury or health condition, or (c) preventative medical care.
In addition to the reasons listed above, service employees who are victims of family violence or sexual assault are entitled to use paid sick leave for medical care or counseling, to obtain services from a victim services organization, to relocate due to the violence or assault, or to participate in related court proceeding.
Employers may discipline service employees who use paid sick leave for purposes other than those specified in the Act.
Request for Paid Sick Leave and Medical Documentation
Under the Act, employers may require service employees to provide up to seven (7) days' advance notice of the need to use paid sick leave if the need is foreseeable. If the need for leave is not foreseeable, service employees may be required to notify the employer as soon as practicable.
Employers may also require service employees who use more than three (3) consecutive days of sick leave to provide reasonable documentation that the leave is being used for a permitted purpose. Reasonable documentation may include a certification from a healthcare provider (where the leave arises from the illness, injury or health condition of the employee or his/her child or spouse) or, where the leave arises from family violence or sexual assault, court records or documentation signed by the service worker or a police officer, victim services organization, or attorney involved with the worker.
The Act provides that an employer and service worker can agree that the employee may make up missed time during the same or following pay period and, in such case, the time missed may not be charged to the employee's bank of accrued paid sick leave.
Compliance via Existing Paid Leave Policies
Employers who currently provide any other paid leave that (1) may be used for the reasons described above and (2) is accrued in total at a rate equal to or greater than the rate described in the Act will be in compliance without the need to adopt any additional policies. This includes existing policies providing for paid vacation, personal days or paid time off.
The Connecticut paid leave law does not require employers to pay employees for accrued but unused time upon termination of employment (although such a requirement may separately exist by virtue of an employer's policy or collective bargaining agreement). Employees whose employment is terminated for any reason and who are later rehired will begin accruing paid sick leave anew and shall not be entitled to any unused hours accrued prior to the break in service.
Enforcement of The Act
Employees may file a complaint with the Connecticut Department of Labor ("DOL") if they believe an employer covered by the Act has violated the law or retaliated/discriminated against them for requesting or taking paid sick leave. Notably, the anti-retaliation and anti-discrimination provisions of the Act are not limited to service workers who request or use paid sick leave as required under the Act. Rather, the protections against retaliation and discrimination also extend to any employee who seeks or uses paid sick leave under a covered employer's own paid sick leave policy. The Act broadly defines a "retaliatory personnel action" as "any termination, suspension, constructive discharge, demotion, unfavorable reassignment, refusal to promote, disciplinary action or other adverse employment action."
If an employer is found to have violated the Act, it may be assessed a penalty of $100 to $500 for each violation. In addition, the DOL may award an employee "all appropriate relief," including reinstatement, back pay, and benefits.
Employers must provide each new service worker with notice, at the time of hire, that (i) the worker is entitled to sick leave and information regarding the amount of sick leave provided and how sick leave may be used; (ii) retaliation for requesting or taking sick leave is prohibited; and (iii) the employee has a right to file a complaint with DOL for violations of the Act. Employers may satisfy the notice requirement by displaying a poster in both English and Spanish in a conspicuous place. The DOL is empowered to establish additional requirements regarding how employers may comply with the notice requirement. (Note : This provision of the Act is inconsistent with the Act's provisions regarding the provision of "other types of paid leave" as set forth above. Until the DOL issues guidance on the notice requirement, employers should provide notice of all types of paid leave in addition to sick leave, if any, provided to employees.)
Next Steps for Covered Employers
Covered employers in Connecticut should work with employment counsel to review existing paid leave policies and, if necessary, develop a written policy on paid sick leave for service workers pursuant to the new law. Careful attention should be given to the accrual of paid time off, the procedures for requesting leave and the carry-over of accrued but unused time. Any written policy should also state whether employees will be paid for accrued but unused time upon termination of employment.
Employers should also train supervisors on the Act's requirements and prepare for tracking the accrual and use of paid sick leave and how it will interact with other leave policies. In addition, on January 1, 2012, employers should post the required notice in a conspicuous location within the workplace.
Finally, given the broad anti-retaliation provisions and remedies of the new law, covered employers should take steps to avoid retaliating or discriminating against any employee who requests or uses paid leave in accordance with the Act or the employer's own paid sick leave policy. Once the Act takes effect, covered employers should exercise caution (and document their legitimate, non-retaliatory reasons) when taking disciplinary action against an employee close in time to that employee's use of paid sick leave.