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Connecticut Public Act No. 03- 213 Act Makes Changes To The Connecticut FMLA

Labor and Employment Alert

October 1, 2003

Authors: Henry J. Zaccardi

Effective October 1, 2003, Connecticut Public Act No. 03- 213 Act makes changes to the Connecticut FMLA1 in two areas. First, the Act permits employees to use up to a maximum of two weeks accrued paid sick leave while on leave for their own or a covered relative's serious health condition. Employees may also use this amount of accrued paid sick leave for the birth or adoption of a child. Under prior CT FMLA provisions an employer could allow such use but was not required to do so by the statute. "Sick leave," for purposes of this provision, means an absence from work for which compensation is provided through an employer's bona fide written policy that provides compensation for loss of wages occasioned by illness. It does not include absences from work for which employee is compensated through employer's short or long-term disability plan (whether self-insured or not).

If an employer denies the use of paid leave under applicable circumstances, or disciplines, discharges or discriminates against an employee for using or attempting to use paid sick leave for CT FMLA purposes, the employee may file a complaint with the Commissioner of Labor. The Commissioner must hold a hearing on the matter and may award appropriate relief, including reinstatement, back pay and lost benefits. A party aggrieved by the Commissioner's decision may appeal to the Superior Court.

In addition, the act expands the number of ways in which a CT FMLA-covered employer may calculate the 24-month leave entitlement period. Under CT FMLA eligible employees receive up to 16 weeks of leave in a 24-month period. Previously, the 24-month period began on the first day of CT FMLA leave taken by an employee. Now, employers will have the following options, similar to the approach the federal FMLA has taken for many years:

(1) begin the 24-month period starting on the first day of leave;

(2) use two consecutive calendar years;

(3) use any fixed 24-month period, such as two consecutive fiscal years; or,

(4) use the 24-month period measured backwards from the employee's first date of leave (a "rolling, backwards looking" method).

Federal FMLA has always had these four possible ways to calculate the entitlement period under that law and the rolling, backwards looking method is usually the most favorable for employers.

As of the effective date of PA 03-213, employers can now choose from the four options, including adopting the rolling backwards looking method. However, should an employer decide to change its method for setting the entitlement period, it should not change the method for anyone already on leave, or anyone who already gave notice of need for leave. Further, to implement a change we recommend that there should be a 60 day advance notice to employees. That notice timing is called for under the federal FMLA regulations, and if an employee needs leave during that period he/she can choose the entitlement period method "providing the most beneficial outcome to that employee." 29 CFR Section 825.200(d) and (e). Of course there are no CT implementing regulations addressing this statutory amendment as yet and so caution is recommended.

 

Footnote:
1. Note that CT FMLA is applicable only to private sector employers, and not public employers or private or parochial elementary and secondary schools.

 

The content of this article does not constitute legal advice, since legal advice is dependent upon the facts and circumstances of particular cases. If you have a question about how this article may apply to you or your organization, please contact one of the attorneys in our Labor and Employment Department.

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