On March 22, 2022, the Connecticut Department of Labor (DOL) released its final proposed amended regulations for the Connecticut Family and Medical Leave Act (CT FMLA). The proposed regulations amend several key provisions of the current CT FMLA regulations. It is not expected that there will be any further substantive changes to the final proposed regulations, as a result, employers should take note of some of the key highlights from the amended final regulations:
- Coverage. The term “employee” has been narrowed to one who is engaged in services with an employer in the state of Connecticut and an “employer” has been expanded to any Connecticut employer that employs at least one employee, rather than 75.
- Eligibility. Employees are eligible for CT FMLA leave after working three consecutive months. Under the prior regulations, an employee was required to work for 12 months before becoming eligible for CT FMLA leave.
- Covered Family Members. Covered family members now include spouses, siblings, parents, grandparents and grandchildren, as well as individuals related by blood or affinity whose close relationship with the employee is equivalent to a relationship with one of these family members. The proposed regulations also extend coverage to a son or daughter of any age, previously, coverage only extended to a son or daughter aged 18 and under.
- Leave Entitlement. The proposed regulations change the limitation on the total amount of leave an employee may take from 16 weeks in a 24-month period, to 12 weeks during any 12-month period. Under the old regulations, an employee was not entitled to any additional leave for health conditions during pregnancy. Under the proposed regulations, an employee with a serious health condition resulting in a period of incapacity during pregnancy is entitled to take an additional two weeks of leave during the applicable 12-month period (14 weeks).
- Requirement to Substitute Other Paid Time Off During Leave. Not previously addressed in the prior regulations, the proposed final regulations allow an employee to retain up to two weeks of accrued unpaid leave and define the term “substitute” to mean that the accrued paid leave provided by the employer runs concurrently with the unpaid CT FMLA leave.
- Holidays During Leave. The proposed regulations confirm 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. However, if an employee is using CT FMLA leave in increments of less than one week, 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.
- Requesting Documentation Related to Leave. The prior regulations did not address the types of evidence that could be requested. The newly proposed regulations provide that documentation/attestation may be requested that requires employees to describe/attest that the individual for which leave is being requested is the equivalent of a family member as defined under the law.
- Recertification Cycle. Employers may also request one re-certification in less than 30 days if the: (1) employee requests an extension of leave, (2) circumstances described by the prior certification have changed significantly, or (3) employer discovers information that calls into question the employee’s explanation for the absence or the validity of the certification. Previously, employers could only request re-certification every 30 days.
- Benefits During Leave. Benefits must remain in place while on leave. The proposed final regulations provide that an employee is entitled to accrue additional benefits or seniority during unpaid CT FMLA leave, if this practice is consistent with other unpaid leaves offered by the employer. In addition, 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 address this issue.
- Notice Requirements. Employers must distribute a notice or policy to all employees concerning CT FMLA. Additionally, employers must notify employees of their eligibility to take CT FMLA leave no later than five business days after receiving a request to take leave or learning that the employee is taking leave for a qualifying reason. At the time notification is made, an employer that requires a fitness-for-duty certification to return to employment must convey that obligation to the employee, including whether the employee must obtain an evaluation from a health care provider before returning to work.
- Claims for Violation of CT FMLA. The proposed final regulations allow an employee to file suit in court within 180 days of the alleged violation without having to first file an administrative complaint with the DOL. An employee who elects to file an administrative complaint at the outset will have 90 days after the date of dismissal and release of jurisdiction to subsequently file an action in court.
The state has developed a dedicated CT FMLA website, where applicable forms and other informational resources are also available to assist employers with compliance.
Next Steps for Employers
While these proposed amendments are still pending approval, it is not expected that there will be any major changes, as such, employers should review existing leave policies and procedures and consider any changes may be necessary and ensure that said changes align with the leave requirements under the proposed final regulations.
HR Works will continue to monitor this topic and provide updated information as it is made available.