This post was written by David L. Weissman, Cindy Schmitt Minniti and Daniel A. Schleifstein.
Connecticut recently became the first state to mandate that employers provide paid sick leave for service workers (the “Act”), effective January 1, 2012.
The Act may indicate an emerging trend of which employers should be aware. Cities, including San Francisco, Washington, D.C., and Milwaukee, have already passed mandatory paid sick leave legislation in recent years, and legislation is currently pending in Philadelphia and Denver. Massachusetts and California (the latter of which enacted its own Paid Family Leave legislation back in 2002) are also moving to pass similar legislation.
Which companies are covered?
The Act applies to companies with 50 or more employees in Connecticut not already offering at least five paid days off for full-time workers.
Which employees are covered?
Covered by the Act are "service workers." They are hourly paid, overtime-eligible workers employed in dozens of specific occupations listed in the federal Bureau of Labor Statistics Standard Occupational Classification system. Included are waiters, cashiers, cooks, hair stylists, security guards, nursing aides, administrative personnel, and employees without discretionary and independent authority.
The Act excludes manufacturing workers, salaried employees, day or temporary workers, workers at nationally chartered nonprofit organizations, managers with authority to hire and fire staff, professionals such as lawyers and physicians, outside salespeople, and certain computer professionals.
What is required?
Hours: Service workers accrue one hour of sick leave for every 40 hours of work but no more than 40 hours in a calendar year. They can carry over as many as 40 hours into the next calendar year, but cannot use more than 40 hours of leave in any year. Service workers employed prior to January 1, 2012 can begin accruing sick leave as of January 1, 2012. Service workers hired on or after January 1, 2012 can begin accruing sick leave on their hire date. Service workers cannot use accrued sick leave until they have worked at least 680 hours after the benefit starts accruing, and they must have worked an average of 10 hours a week for the employer during the most recently completed calendar quarter.
Pay: Service workers' paid sick leave must be the greater of: (1) the worker's normal hourly wage, or (2) the statutory minimum wage required while the worker is on leave. If the service worker's hourly wage varies, the “normal hourly wage” is the average hourly wage paid to him or her in the pay period prior to the leave. An employer does not have to pay a service worker for unused sick leave upon termination, unless otherwise provided by an employer policy or a collective bargaining agreement.
Notice: Covered employers must inform each service worker at hiring that: (1) s/he is eligible to accrue paid sick leave, in what amount, and how it can be used; (2) retaliation for requesting or using sick leave is illegal; and (3) s/he can file a complaint with the labor commissioner for any violation.
Displaying a poster with this information, in English and Spanish, in a conspicuous place, accessible to employees, at the employer's place of business, satisfies this notice requirement.
What qualifies as "sick leave"?
An employer must allow a service worker to use paid sick leave for the worker’s, or his or her spouse's or child's: (1) illness, injury, or health condition; (2) medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (3) preventive medical care.
If the service worker is a victim of family violence or sexual assault, paid sick leave is also available for: (1) medical care or psychological or other counseling for physical injury or disability; (2) services from a victim services organization; (3) relocating; or (4) participation in any civil or criminal legal proceedings.
What about service workers subject to a labor agreement?
The Act does not preempt or override the terms of any collective bargaining agreement effective prior to January 1, 2012.
Do employees need to provide advance notice prior to taking sick leave and may employers require verification?
Employers may require service workers to provide notice: (1) up to seven days before taking any leave that is foreseeable, or (2) as soon as practicable for any leave that is not foreseeable.
If the leave is for three or more consecutive days, the employer can require reasonable documentation verifying the leave's purpose.
What are the penalties for failing to comply?
Prohibited is retaliating against any employee by terminating, suspending, constructively discharging, demoting, unfavorably assigning, refusing to promote, disciplining, or taking any other adverse employment action against an employee because the employee: (1) requested or used paid sick leave under the Act or an employer's own paid sick leave policy, or (2) filed a complaint with the labor commissioner alleging an employer violated the Act’s provisions, regardless of whether the employee is a service worker or would otherwise be excluded from sick leave pay.
The Act permits the filing of administrative complaints but not court actions.
Civil penalties include $500 fines for each instance of retaliation and "all [other] appropriate relief." This may include payment for used paid sick leave, reinstatement to the employee's previous job, back wages, and employee benefits for which the worker would have been eligible if the retaliation or discrimination had not occurred.
The Act provides for penalties of up to $100 for any other violation.
What do we recommend?
Connecticut employers should take the following steps to ensure compliance:
- Review paid and unpaid personal leave policies in your employee handbook.
- Determine whether and which employees are covered by the Act.
- Obtain posters and/or add to interviewing/hiring documents to explain the Act and its benefits.
- Train and sensitize supervisors and managers on Act documentation and record-keeping, and the illegality of retaliation.
- Consult an experienced, knowledgeable labor & employment attorney to ensure full compliance.