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Connecticut FMLA Complicates Compliance With Federal Law

March 26, 2009

Authors: Gary S. Starr, Henry J. Zaccardi

While the Federal Department of Labor has issued new regulations covering employers with 50 or more employees, this has not brought an end to the conflicts with Connecticut law, which covers employers with at least 75 employees. There are state and federal requirements that are different. Where inconsistencies exist, employers subject to both laws are required to follow the provision that is most favorable to the employee. The following highlights some of the areas where conflicts persist due to statutory differences between state and federal law. Throughout the alert, blue highlighted words are links to a more detailed explanation of the differences. 

There is a conflict over how much time an employee must work to be eligible for leave. There is also a conflict between how much leave an employee can take and who can take leave.  

Under the new federal regulations, employers must satisfy multiple notification requirements, including a general notice of FMLA rights, eligibility notice, rights and responsibilities notice, and designation notice. The time period pertaining to these notices has been expanded to 5 business days.

The federal regulations permit employers to seek a more detailed statement of "fitness for duty" when an employee returns from leave, including whether the employee can perform the essential functions of the job, so long as the employer follows the proper procedures during the designation of leave period by providing the employee with a list of job duties and essential functions. Connecticut does not permit or follow this approach.  

Under the federal regulations, if an employee, who has qualified for intermittent leave, fails to specifically reference the reason for the time off, an employer can delay approval, unless there are unusual circumstances. Connecticut does not follow this approach. 

There are new federal medical certification forms for an employee’s own serious health condition and for certification of a qualifying family member’s serious health condition. These forms do not comply with Connecticut’s requirement as the federal form includes a request for a diagnosis from the employee’s health care provider.

When the employee provides the completed medical certification, if there is a need to call a health care provider directly for the purposes of authenticating or clarifying the information, the federal regulations permit such direct contact. Connecticut does not.

When there is a question of the employee’s continuing eligibility for FMLA, the federal regulations allow the employer to request a recertification of the condition and to have the employee be responsible for the expense associated with that recertification. Connecticut does not permit that cost shifting.

The federal regulations permit an employer to require a fitness for duty certification every 30 days for an intermittent or reduced schedule FMLA leave, if there is a reasonable safety concern about an employee’s ability to perform his/her duties. This is not permitted under Connecticut law.

The new federal regulations make clear that both mother and father are entitled to FMLA leave for the birth of a child and for care of the newborn during the 12-month period beginning after birth of the child. Also, a "husband" may take leave to care for a pregnant spouse with a serious health condition. Connecticut law is more expansive.

Under the federal regulations in determining eligibility for intermittent leave or a reduced schedule when an employee’s hours have varied, an employer must determine the number of hours worked for intermittent or reduced schedule leave by taking an average of the employee’s hours for the prior 12 months. Connecticut does not follow this process.

Federal law now allows employers to deny a bonus that is based on specific performance to an employee who has not achieved the goal due to an FMLA absence, e.g. bonus for perfect attendance. Connecticut prohibits such a denial where the employee is being penalized for taking an approved leave.  

Light duty assignments and reinstatements are also handled differently.

This brief review highlights the complications faced by Connecticut employers. Employers with facilities and offices outside of Connecticut will find that at some locations the rules will be different and that a special effort must be undertaken to be sure to comply with the Connecticut law. To view our previous FMLA alert outlining the most recent changes in the law, please click here.  If you have specific questions on FMLA compliance, please contact Gary Starr or Henry Zaccardi.

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