Singing the FMLA Blues
The following was first published on Berchem Moses PC’s Connecticut Labor & Employment Law Journal. It is reposted here with permission.
Employers trying to enforce attendance policies confront a poker hand of laws that protect the rights of employees to different types of work leave.
Indeed, an employee out on leave can be eligible for various types of leave, including workers’ compensation, federal Family and Medical Leave Act, Connecticut FMLA, Americans with Disabilities Act, and Connecticut’s Fair Employment Practices Act, all at the same time.
Hence, employers can violate a number of statutes in an effort to get employees to come to work or by terminating the employment of employees who won’t or can’t work.
This year, Connecticut added the Paid Family and Medical Leave Act, which only adds to the confusion.
We will try to provide some FMLA clarity, but remember each statute must be analyzed separately in any leave situation.
State Law Changes
Prior to Jan. 1, 2022, Connecticut FMLA applied to employers with 75 or more employees. Effective this year, Connecticut FMLA applies to virtually all private sector employers, regardless of size.
Connecticut paid leave is a separate law from Connecticut FMLA.
While leave under Connecticut and federal FMLA was previously unpaid, Connecticut paid leave now provides up to 12 weeks of pay annually from the state upon application by the employee.
Paid leave is administered by the state, with the employer’s cooperation, while Connecticut FMLA is administered by the employer.
Connecticut FMLA and federal FMLA also have different eligibility requirements and reasons for leave, although there is substantial overlap.
The result is that an employer who is subject to both Connecticut and federal FMLA (with 50 or more employees) must separately determine applicability.
For example, an employee takes 12 weeks of leave under Connecticut FMLA to care for a parent with a serious health condition.
The employee receives benefits through Connecticut paid leave. The leave also qualifies for concurrent unpaid leave under federal FMLA.
Later the same year, the employee wants to take 12 weeks to care for a sibling with a serious health condition.
The employee is not entitled to any additional leave because the employee has exhausted both the state and federal FMLA leave banks.
Now flip the order. First, the employee takes leave for the sibling and then for the parent.
The employee uses 12 weeks under Connecticut FMLA and receives benefits through Connecticut paid leave.
But the sibling is not considered a covered family member under federal FMLA, so the employee has not touched that leave bank.
When the employee wants to take 12 weeks off for the parent, the employee still has 12 weeks of unpaid leave available under federal law.
If an employer gets this wrong and denies the leave, the employee may have a case for FMLA interference under the federal law.
That is why it is important to analyze each scenario through each framework so you can avoid singing those FMLA blues!
About the authors: Christopher Hodgson is a Senior Partner with Berchem Moses PC’s labor and employment practice group. He advises employers regarding all laws applicable to the workplace. Rebecca Goldberg is an associate with Berchem Moses PC, focusing on labor and employment matters.
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