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Why Connecticut Employers Need to Ask Employees: “Are You Sick?”

Beginning January 1, Connecticut will be the first state to have a paid sick leave law.  The law has generated a lot of questions as employers prepare for compliance.  This article focuses on the law’s carryover rule.  To see some of our other articles on the new law go to:

The  law mandates certain employers provide up to 40 hours  of paid sick leave to their employees.  Sick leave will accrue at the rate of one hour per 40 hours worked, up to the 40-hour maximum.  The law also requires employers to permit workers to carry over up to 40 hours (five days) of unused accrued sick leave each year.  This could be an issue.  For employers whose policies differentiate between sick days and vacation/personal days, this process is straightforward.  But employers who embrace the more flexible “paid time off” approach have a new challenge.

In a “paid time off” plan, employers offer a set number of days off to be used for any reason, including illness.  The new law explicitly allows employers to continue using this method, as long as the plan allows the accrual and use of sick days at least as quickly as the law requires in general.  But employers do not need to allow employees to carry over 40 hours of vacation time or personal time, so employers who do not document the reason for the time off will not know how much sick time, if any, they must allow the employee to carry over.  For example, an employer that offers 10 days of paid time off does not need to allow any time to be carried over if an employee used at least five sick days.  But, if the employee took eight vacation days, the employer must allow two days to be carried over as sick time.

Because the employer’s obligations to allow carryover will differ based on whether time off is sick leave or time taken for another purpose, employers must document the reason for the time off if they want to limit the amount of carryover.  The law permits employers to request “reasonable documentation” supporting the request to use sick leave when the employee uses sick leave on three or more consecutive days. But what about using sick leave for a one day absence? While documentation may not be required, a simple question – were you out sick – should be allowed.  Under the law, “sick leave” includes time taken to care for a child or spouse who is ill or for medical or psychological treatment following family violence or sexual assault, so make sure to ask a broad enough question, without being invasive.  Probing too far into the employee’s reasons could lead to issues under the ADA, GINA, or other state and federal laws.  Exact guidance on this line has yet to be announced.

If you would rather not get into this complexity and you will not just allow the carryover of whatever time is unused, there are still alternatives.  The Connecticut Department of Labor has said employers do not need to allow carryover at all if they grant at least 40 hours of paid sick leave each January 1st.  Another way to avoid carryover is to pay out the extra sick days at the end of the year, but this option is available only if the employee voluntarily decides to take it.

Especially because the Paid Sick Leave law is the first state law of its kind, there are many unresolved questions.  Using ambiguities to avoid compliance is dangerous.  Have an attorney review your sick leave policies to ensure it will comply.  We will continue to publish refinements to this law as they are announced.   You non-Connecticut employers, beware; you may be next!

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.