Faced with questions about how the new federal Family and Medical Leave Act ("FMLA") regulations would impact employers who are also subject to the Connecticut Family and Medical Leave Act ("CFMLA"), last week the Connecticut Department of Labor ("CT DOL") posted on its website extensive guidance on the issue. Although the CT DOL has accepted and will enforce several of the new regulations, it has rejected many of the more employer-friendly regulations pending future guidance from the state legislature. The differences between the two regulatory schemes should be noted by Connecticut employers when revising and implementing their FMLA policies.
As an initial matter, the CT DOL clarified that the state statute does not provide for military family leave. As a result, the military family leave provisions recently added to the FMLA by the National Defense Authorization Act will not be grafted into the CFMLA. Some of the other key differences between the new FMLA regulations and the CT DOL's enforcement policies include the following:
- In light of the state Supreme Court's decision to legalize same sex marriage, the CT DOL has affirmed that any eligible employee may take leave in connection with the birth or adoption of his or her child, or to care for a spouse who is pregnant or who has a serious health condition after childbirth. The CT DOL thus rejects the gender-specific FMLA regulations related to pregnancy.
- In contrast to the Federal regulations, the CT DOL will not permit employers to deny employees a bonus or other payment if such an award is based on the achievement of a specific goal (e.g., hours worked, or perfect attendance) that would have been achieved but for the employee's leave.
- Employers must provide eligibility (WH-381), designation (WH-382) and medical certification (WH-380E or WH-380F) notices to employees within two days, and not the five days now permissible under the FMLA.
- The CT DOL will not enforce the new FMLA regulation providing that leave can be delayed or denied if, absent extenuating circumstances, an employee fails to comply with the employer's notice and procedural requirements for requesting a foreseeable leave. Instead, the CFMLA requires only that employees provide "timely verbal or other notice." In addition, if the leave is unforeseeable, the CFMLA does not permit an employer to deny leave if the employee fails to comply with internal notice policies.
- In contrast to the new Federal regulations, under the CFMLA, when an employer requests medical certification (Forms WH-380E or WH-380F), it cannot request a diagnosis from a health care provider.
- The CFMLA does not permit, as the Federal regulations now do, an employer to directly contact an employee's health care provider. The CT DOL will enforce the state regulations that require that all communications to clarify and authenticate medical certification must be between heath care providers.
It is essential for Connecticut employers subject to both the FMLA and CFMLA to understand the differences between these laws and implement policies that comply with both statutes. As a reminder, the FMLA applies to employers with 50 or more employees within 75 miles, while the CFMLA applies to organizations with 75 or more employees in Connecticut. The two schemes also provide different benefits: the FMLA provides for up to 12 weeks of leave within a one-year period for employees who have at least 12 months of employment with the employer and have worked at least 1,250 hours in the year preceding the requested leave; while the CFMLA provides for up to 16 weeks of leave within a two-year period for employees who have worked for the employer for at least 12 months and have worked at least 1,000 hours in the year preceding the requested leave.