Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: Effective August 3, 2022, the Connecticut Department of Labor issued final amended CT FMLA regulations. The final regulations make several small changes after the proposed regulations were rejected without prejudice by the Legislative Regulation Review Committee (“LRRC”) on June 28. The LRRC’s substantive concerns with the proposed regulations were largely based on the lack of definitions for several key terms appearing in the text and the need for clarification on certain provisions. The LRRC also suggested numerous technical corrections to the text which included typographical and stylistic revisions.
In 2019 Connecticut enacted the Paid Family and Medical Leave Act, which entitles eligible Connecticut employees to paid family leave. The Paid Family and Medical Leave Act amended the previously existing Connecticut Family and Medical Leave Act (CT FMLA), and through a new law, the Connecticut Paid Leave Act (CT PLA), established the CT Paid Leave Authority to provide income-replacement benefits for eligible employees who take leave under the CT FMLA.
Employers have long awaited guidance on the State’s new Paid Family and Medical Leave Act, and the good news is—we are almost there. On March 22, 2022, the Connecticut Department of Labor (“CT DOL”) issued its final proposed amended CT FMLA regulations, which make several amendments to previously existing regulations. The new provisions relate to the job-protected leave aspect of the Paid Family and Medical Leave Act.
This article highlights key changes about which employers should be aware.
The proposed regulations change the total amount of leave an eligible employee may take from 16 weeks in a 24-month period under the previous CT FMLA to 12 weeks during any 12-month period.
Eligibility and Coverage
The new regulations and amended CT FMLA apply to employers with one or more employee. Previously, CT FMLA applied to employers with 75 or more employees. To be eligible for leave, an employee needs to be employed by a Connecticut employer for at least three consecutive months (defined as 13 weeks) immediately preceding the date the employee’s CT FMLA leave will commence. Previously, an employee was required to be employed for a period of 12 months.
The new provisions also greatly expand the definition of covered “family members,” for whom an employee may take leave to provide care. In addition to spouses, children, or parents, the new paid leave framework adds siblings, parents-in-law, grandparents, and grandchildren, as well as any other “individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships” to the definition of “family member.” These categories of individuals are also defined broadly. For example, the regulations define “sibling” as a biological brother or sister, half-brother or sister, stepbrother or sister, adopted brother or sister, foster brother or sister, or brother-in-law or sister-in-law of an eligible employee or the eligible employee’s spouse. In addition, the definition of “son or daughter” has been revised to include children “of any age.” Previously, CT FMLA applied to children under the age of 18.
With regard to “individual[s] related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships,” the proposed regulations permit employers to require an employee to provide a written statement, signed by the employee, describing and verifying that the employee considers their relationship to the individual to be equivalent to the relationship that one would have with either a spouse, sibling, child, grandparent, grandchild or parent. Such individual’s close association with the employee, according to the regulation, should involve a “significant personal bond.”
Additional Leave in the Event of Incapacity During Pregnancy
Eligible employees are entitled to take up to two additional workweeks of leave during the applicable 12-month period if the employee has a serious health condition while the employee is pregnant and that serious health condition results in a period of incapacity. These two additional weeks are available only during the employee’s pregnancy, and are in addition to the 12 weeks to which employees are otherwise entitled. The regulations provide that, if an eligible pregnant employee requires more than two weeks of leave for a serious health condition during the pregnancy, the amount of available leave for other qualifying reasons would be reduced accordingly.
The proposed regulations provide that if an employee has not yet notified their employer of their pregnancy and experiences another serious health condition requiring leave during pregnancy, the employee is still entitled to the additional two weeks of leave for a serious health condition during pregnancy. The proposed regulations also state that if the employee has a pregnancy-related absence (for example, for morning sickness) but has not yet notified the employer that they are pregnant, the employer may, in its discretion, designate up to two weeks of such leave as CT FMLA when notified of the pregnancy.
Use of Employer-Provided Paid Leave/PTO
The proposed regulations provide that an eligible employee may choose to substitute accrued paid leave provided by the employer for unpaid CT FMLA leave, while also providing that if the employee does not choose to substitute accrued paid leave for unpaid leave, the employer may require the employee to do so. The proposed regulations further explain, however, that an employee may choose to retain up to two weeks of accrued unpaid leave. The proposed regulations also provide, by the way they define the term “substitute,” that paid leave provided by the employer and accrued pursuant to established policies of the employer will run concurrently with unpaid CT FMLA leave, without extending the total leave to which an employee is entitled.
Where an employee’s earned or accrued paid leave is not substituted for the entire period of unpaid leave to which the employee is entitled under the CT FMLA, the proposed regulations provide that the employee may apply for income replacement benefits through the Family and Medical Leave Insurance Program run by the CT Paid Leave Authority, pursuant to the CT PLA.
The proposed regulations reiterate the pre-amendment CT FMLA rule that, for purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as leave has no effect; the week is counted as a full week of leave. If an employee is using CT FMLA leave in increments of less than one week, however, the holiday will not be considered part of the employee’s leave entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
Determining Amount of Leave Used
For purposes of determining the amount of leave used when an eligible employee takes reduced schedule or intermittent leave, the proposed regulations reiterate the prior rule that, if an employee’s schedule varies from week to week, a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) should be used to calculate the employee’s leave entitlement. The proposed regulations add that this calculation applies only where an employer is unable to determine with any certainty how many hours the employee would otherwise have worked but for taking FMLA leave as a result of the employee’s varying schedule. Moreover, if the employee has been employed by the employer for less than 12 months prior to the beginning of the leave period, a weekly average of the hours scheduled over the employee’s entire period of employment with the employer would be used.
The proposed regulations also provide that if an employee would normally be required to work overtime, but is unable to do so because of a CT FMLA-qualifying reason, the employer may count the hours that the employee would have been required to work against the employee’s leave entitlement.
Accrual of Benefits or Seniority during Leave and Requalification for Benefits upon Return
The proposed regulations provide that an employee is entitled to accrue additional benefits or seniority during unpaid CT FMLA leave if the employer’s policy provides that other employees on unpaid leave are entitled to such accrual. The proposed regulations also state that employers may not require returning employees to requalify for benefits to which they were entitled before going on leave. The prior CT FMLA regulations did not speak to this issue.
Rights and Responsibilities and Eligibility Notices
Previously, employers were obligated to notify eligible employees of their leave rights, and the proposed regulations maintain this duty. The proposed regulations add a requirement that employers must notify an employee of their eligibility to take CT FMLA leave no later than five business days after receiving a request to take such leave or learning that the employee is taking leave for a qualifying reason. The eligibility notice must state whether the employee is eligible for CT FMLA leave and, if the employee is not eligible, provide at least one reason why.
Within five business days of the employer’s having enough information to determine whether the leave is for an CT FMLA-qualifying reason, an employer must provide employees with a designation notice. If the employer requires that paid leave be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as CT FMLA leave, the employer must inform the employee of this requirement when FMLA leave is designated. Further, if the employer requires employees to present a fitness-for-duty certification to be restored to employment, the employer must notify the employee of this obligation, including whether the employee must obtain an evaluation from a health care provider before returning to work, with the designation notice.
Request for Recertification in Less than 30 Days Permitted
Previously, employers were not permitted to require employees to provide recertification for leave more than once in a 30-day period. Under the proposed regulations, employers may request one recertification in less than 30 days if: (1) the employee requests an extension of leave; (2) circumstances described by the prior certification have changed significantly, such as the duration or frequency of the absence, the nature or severity of the illness, or related complications; or (3) the employer discovers information that calls into question the employee’s stated reason for the absence or the continuing validity of the certification.
Employees Can Sue Directly in Court without First Filing a Complaint with the CT DOL
The proposed regulations provide that an employee alleging a violation of CT FMLA rights may file suit against the employer in court within 180 calendar days of the employer’s alleged violation. The regulations expressly provide that the employee may bring such an action “without filing an administrative complaint.” Previously, an employee alleging a violation was required initially to bring a claim before the CT DOL before filing suit in court. The proposed regulations provide that an employee may elect to file an administrative complaint with the CT DOL. In that event the employee will have 90 days after the date of dismissal by the CT DOL and release of jurisdiction to file an action in court.
Employers in Connecticut should review the CT DOL’s proposed final regulations as it is very likely that they will be approved in their current form or with few changes. We urge employers to conduct a review of their existing policies and forms to ensure they are checking all of the boxes that are now required.
While we now have final proposed amendments on the CT FMLA side of things, we are still waiting for regulations to be issued concerning the CT PLA. The Paid Leave Authority (“the Authority”) posted proposed draft “policies” (i.e., regulations), in the February 22, 2022 issue of the Connecticut Law Journal for public comment. These policies have been slightly revised from a prior version but not yet finalized or adopted. The Authority meets regularly, and we expect a vote on the Authority’s revised policies to be conducted soon.
We are monitoring both aspects of the development of Paid Family and Medical Leave Act regulation and will provide updates as additional guidance becomes available from the CT DOL or the Authority.