On June 8, 2011, Connecticut Governor Daniel P. Malloy signed potentially precedent setting legislation that could be the initial spark in a nationwide revolution. The new law, which goes into effect January 1, 2012, mandates that employers with 50 or more employees (in Connecticut) provide up to 40 hours of paid sick leave to their “service workers.” This includes individuals who work in service capacities in hospitals, restaurants, schools, and many more institutions, but excludes exempt employees (managers, professionals, computer professionals, and outside salespeople).
The covered service workers must receive one hour of paid sick leave for every 40 hours of work. The pay rate during the sick leave should be equal to the greater of either the normal hourly wage for the service worker, or the statutory fair minimum wage rate. If the service workers’ hourly wage varies depending on the duties they performed, the “normal hourly wage” will mean the average hourly wage earned in the pay period prior to the one in which paid sick leave was used. Covered workers may only use paid sick leave after completing 680 hours of employment, unless the employer agrees to allow use before that time. Also, each worker must have worked an average of at least 10 hours per week for the employer in the most recent calendar quarter to use paid sick leave. Absent a more favorable company policy or agreement, the law provides that the employee may carry over up to 40 hours of unused sick leave from one calendar year to the next, and covered workers are limited to 40 hours of paid sick leave in any calendar year.
This new law will permit service workers to use their accrued paid sick leave for their own illness, injury or health condition, or to care for the illness, injury or health condition of a spouse or child. Furthermore, medical diagnosis, treatment, and preventative medical care for the aforementioned are also included. Finally, the bill also permits the leave to be used for incidents relating to or resulting from domestic violence or sexual assault. Medical certification can be required in certain situations.
If the worker’s need to use paid sick leave is foreseeable, an employer can require advance notice of no more than 7 days. Otherwise, the employer can require only that the worker give notice of intention to take leave as soon as can reasonably be expected. Service workers are not entitled to payment for unused accrued sick leave upon termination of employment, unless that is promised via an employee policy or collective bargaining agreement. An employer is in compliance if it offers any other paid leave or combination of paid leave that may be used for the purposes described in the law. The term “other paid leave” includes, but is not restricted to, paid time off, paid vacation or personal days.
While the law does not prevent an employer from taking disciplinary action if a worker uses the leave fraudulently, the statute has stringent anti-retaliation provisions. In addition, the employer must provide notice at the time of hiring to each service worker of his or her right to paid sick leave, the amount of sick time he or she can use, and the manner in which it may be used. Also, the employer must inform the service worker that retaliation for using paid sick leave is prohibited, and that the service worker may file a complaint with the Labor Commissioner alleging employer violations of the law. An employer is in compliance with these notice provisions if it displays a poster in a conspicuous place, accessible to service workers, at its place of business, which contains the required information in both English and Spanish.
The Labor Commissioner has the authority to hold a hearing on employee complaints and impose a civil penalty of $500 for each violation against any employer in violation of the Act. The Labor Commissioner may also award the employee “all appropriate relief,” including payment for paid sick leave, reinstatement, back pay, and reestablishment of lost employee benefits.
The paid sick leave will begin accruing on January 1, 2012, or in the case of a worker hired after that date, on their initial date of employment. Covered Connecticut employers should be revamping their paid time off policies and preparing the requisite employee notice in the meantime.
This alert was co-authored by Darnell DeCausey.
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