Connecticut Employers Subject to Revised FMLA Regulations
The following article was first published on the News & Insights section of Shipman & Goodwin’s website. It is reposted here with permission.
Recently, the Connecticut Department of Labor issued new regulations under the Connecticut Family and Medical Leave Act.
As detailed below, the new regulations explain the expanded coverage of the revised Connecticut FMLA to a larger number of employers and provide broadened benefits to covered employees.
While some of the changes merely mirror the expanded reach of the revised law, other tweaks in the regulations expand upon the language in the law itself.
Eligibility and Benefits
Under Connecticut FMLA now, all employers with one or more employees performing services in Connecticut are now required to provide job-protected leave to eligible employees.
Under the old regulations and law, an employee was required to work for 12 months before becoming eligible for Connecticut FMLA leave.
But under the new law and now regulations, the timeframe has been significantly decreased requiring that an employee only work for three consecutive months (defined as 13 weeks) to be eligible for Connecticut FMLA leave.
The new regulations also confirm the cap in the law that changes the total amount of leave an eligible employee may take from 16 weeks in a 24-month period to 12 weeks in a 12-month period.
In addition, employees suffering from a serious health condition resulting in incapacitation during pregnancy are now entitled to an additional two weeks of leave during the 12-month period.
Eligible employees also have expanded rights to take Connecticut FMLA leave for covered family members.
Under the new regulations, covered family members include spouses, siblings, parents, grandparents, and grandchildren, as well as individuals related by blood or affinity whose close relationship with the employee is “equivalent” to a relationship with one of these family members.
The regulations further explain what is meant by “equivalent.”
First, it notes that an employer may not require any information or documentation to confirm that the relationship is equivalent to that of a specified family member, other than a written statement signed by the employee verifying that the relationship is considered equivalent one of the above-specified relationships and involves a “significant personal bond.”
Additionally, the regulations no longer define son or daughter to mean children under the age of 18, meaning that eligible parents may now use Connecticut FMLA leave to care for adult children (regardless of mental or physical disability).
Although Connecticut FMLA leave is unpaid, employers retain the right to request or require that an employee utilize their accrued, paid leave during the duration of their leave.
However, under the new regulations and consistent with the revised law, an employee is now entitled to preserve up to two weeks of accrued paid leave time.
As such, while the employer can require that an employee on Connecticut FMLA leave use their accrued leave for the duration of the leave, an employer may not require the employee to exhaust their accrued paid leave during that time.
Employer Rights and Obligations
The new regulations also create increased notice obligations for employers.
Rather than notifying only eligible employees of their leave rights, Connecticut employers must distribute a notice or policy to all employees regarding Connecticut FMLA entitlements including procedures for filing complaints of alleged violations of the law.
Such notice may be provided electronically and may be accomplished by maintaining such notice in an employee handbook or other written guidance or by distributing a copy of such notice to each new employee upon hire.
Additionally, when an employee requests Connecticut FMLA leave or when the employer otherwise obtains knowledge that the employee’s leave may be for a qualifying reason, the employer must now notify the employee of their eligibility to take leave within five business days after learning of the need for such leave.
The employer must also inform the employee at that time if it will require the employee to present a fitness-for-duty certification prior to returning to work.
If the employer determines the employee is not eligible for Connecticut FMLA leave, it must notify the employee in writing of the reason for such ineligibility.
If more than 10% of the employer’s workforce is not literate in English, the employer must provide all of these Connecticut FMLA notices in a language in which the employees are literate.
Employers also have greater rights to requesting recertifications under the new regulations.
Under the old regulations, an employer could not require an employee to provide recertification more than once in a 30-day period.
Now, employers may request one recertification in less than 30 days if the (1) employee requests an extension of leave, (2) circumstances described by the prior certification have changed significantly, or (3) employer discovers information that calls into question the employee’s proffered reason for the absence or the validity of the certification.
The new regulations also clarify that an employee alleging a violation of their Connecticut FMLA rights need not first bring a claim before DOL before filing a lawsuit in court.
An employee may now directly file suit in court within 180 days of the alleged violations.
An employee who elects to file an administrative complaint at the outset will have 90 days after the date of dismissal and release of jurisdiction to subsequently file an action in court.
In light of these revised rights and obligations, employers should review existing policies, notices, and practices to ensure compliance with the new regulations.
Employers should consult with their employment counsel regarding how these new regulations impact their business and employee leave practices.
About the authors: Dan Schwartz is a partner at Shipman & Goodwin and has decades of experience solving complex, employment law problems for companies. Sarah Boxer is an associate at Shipman & Goodwin and a member of the firm’s employment and labor and school law practice groups.
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