Connecticut employers—particularly small businesses—face a host of new administrative challenges Jan. 1, 2022 when employees can begin taking paid family and medical leave.
Private sector employers with one or more employees must grant benefits under changes to the Connecticut Family and Medical Leave Act, with employees eligible to take up to 12 weeks of paid time off within a 12-month period if employed with the company for at least three months.
Attorneys with Kainen, Escalera, and McHale joined Andrea Barton Reeves, CEO of Connecticut's Paid Family and Medical Leave Insurance Authority, to explain the changes Nov. 4 at CBIA’s Employment Law Conference.
“The public act that enacted the paid leave law and revised the Connecticut Family and Medical Leave Act was the same public act, but they are two very different laws,” explained Kainen, Escalera, and McHale attorney Patrick McHale.
Connecticut employers with 75 or more employees were covered by Connecticut's previous FMLA statute, which as McHale explained, "is simply about job-protected unpaid leave."
“There are going to be some occasions where employees are going to be taking Connecticut FMLA and also applying for the paid leave benefit and it might make it easier administratively for you to understand how much the employee is taking at one particular time,” the firm's Jennifer Dixon explained.
Employers can apply for an exemption from Connecticut's program if they provide employees with a private plan with all of the same rights, protections, and benefits as the state program.
The plan must also comply with the paid leave authority's application requirements, including that a majority of the employer's employees working in Connecticut vote in favor of the private plan.
Connecticut's paid leave program has the richest benefits in the country, capped at 60 times the state’s hourly minimum wage, which will be $13 in January 2022, or $780 a week.
When the state's minimum wage hits $15 in 2023, the weekly benefit will increase to $900.
Employers were required to start withholding 0.5% of employees’ salaries Jan. 1, 2021 and remit those funds to the authority quarterly beginning March 31, 2021.
Connecticut's paid leave program is an income replacement benefit only.
Unlike state and federal FMLA, it does not provide job protection, and if an employee is not eligible for job-protected leave, an employer must determine whether they are entitled to job-protected leave under any other statutes (like the Americans with Disabilities Act, the Pregnancy Discrimination Act or the Connecticut Fair Employment Practices Act) or other company policies.
Even if the worker is not entitled to job-protected leave, and, as a result, loses their job, they may be eligible for income-replacement benefits under the state's paid leave statute.
There are four methods an employer can use for determining the 12-month leave period, but the Kainen, Escalera, and McHale attorneys recommend using a rolling period looking backward method, which the authority also uses.
Eligible reasons for leave are relatively broad under the law:
- Serious health condition of an employee
- Serious health condition of an employee’s family member, or person with related affinity
- Birth, adoption, or foster care placement of a child
- Organ or bone marrow donor
- Qualifying exigency related to active duty in the armed force
The Connecticut Department of Labor is developing more detailed guidance for determining and verifying affinity.
By definition, affinity is “any person with whom the employee has a significant personal bond that is likely one of the family relationships listed in the statute, regardless of biological or legal relationship.”
DOL officials have indicated that an employer may be able to request written statements describing the relationship between the employer and the person they will be taking care of that requires them to take a leave.
The amount of leave allotted can increase by two weeks for a person who is pregnant if they are incapacitated before giving birth. That can also include if the reason for being debilitated is not related to their pregnancy.
Leave to care for a person who is in the military who needs assistance can be up to 26 weeks over a 12-month period. It must be for a parent, family member, or next of kin to the person who is injured.
"The best point we could make to you is documentation—with regard to employee absences—is really crucial," said McHale.
"When an employee calls out, you need to ask the question 'why?'"
Employees are generally required to provide 30 days advance notice if they are going to request paid FMLA. If that time frame is not possible, an employee can request it "as soon as practicable."
Dixon said an employee may not always realize they can take leave under paid FMLA when they first learn they will have to be out, but it is the employer’s duty to tell them they are eligible.
“The employee may not necessarily say, ‘I want an FMLA leave,'" Dixon said.
"But if they tell you they need time off to care for their mother, that is a signal to you that this is likely going to be a qualified FMLA leave and you need to give them their rights and responsibilities."
Once an employer receives notice, or finds out a person is going to take FMLA, the employer must provide the employee with their rights and responsibilities under the law within five business days of the request.
There may also be medical certification forms that an employer will give to an employee with rights and responsibilities.
An employee then has 15 calendar days to complete the forms and give them back to the employer.
Once an employer receives those forms, they have five business days to determine if the request qualifies and notify the employee (in writing again) that the time off is designated as FMLA.
If an employee does not want to complete a medical certification form, an employer does not have to approve leave, although Dixon said traditionally employers should approve the time if they know the reason for being out to be true.
Medical records are part of the FMLA forms in many cases, but they must be kept separate from all other personnel files. Medical files also must be locked.
Although the federal FMLA statute requires that employers maintain the health insurance of an employee on FMLA leave, Connecticut's FMLA statute does not have this requirement.
It is important to remember that Connecticut's Department of Insurance regulates fully-insured health plans, and requires that such plans maintain health insurance for an employee who is absent due to their own illness or injury, on the same terms as if actively at work.
While this requirement will not apply to CT FMLA absences based on caregiver leave or newborn bonding leave, for example, it will apply to employees who take CT FMLA leave for their own serious health condition.
Other benefits, such as accrual of PTO and seniority, should be provided on the same basis as those on non-FMLA-related absences.
Under Connecticut law, an employer must return someone to their original position when they return from leave.
If for some reason that position is gone, the employee must be offered an equivalent position that has the same pay, benefits, and essentially the same conditions of employment as their original position.
If an employee is not medically able to perform original or equivalent job after their leave, an employee must be offered work suitable to their condition, provided the work is available, and with matching pay.
Large employers should be familiar with the Connecticut Family and Medical Leave Act, however there are notable changes to be aware of:
- Eligibility requirements have changed from 12 months, down to three
- There is no longer an hours-worked eligibility requirement
- The definition of a family member has expanded to child of any age, in-laws, grandparents, grandchildren, and affinity
- Maximum amount of leave has shifted from 16 weeks to 12 in a 12-hour period
- If an employer requires an employee to use paid time off during their FMLA leave, the employee must still be allowed to retain two weeks of accrued but unused PTO to use while not on leave
If an employee wants to use all of their PTO, they still can, but it must be up their choice.