OLR Bill Analysis

sHB 6187 (as amended by House “A”)*

AN ACT MANDATING EMPLOYERS PROVIDE PAID SICK LEAVE TO EMPLOYEES.

SUMMARY:

This bill requires most employers with 50 or more employees in the state to provide their employees with paid sick leave once the employee has worked 1,040 hours. Paid sick leave accrues at a rate of one hour for each 40 hours worked after the employee has worked 520 hours in 12 months. Current law does not require employers to provide sick leave, whether paid or unpaid.

Employees may accrue up to 32 hours of sick leave in 2010 and up to 40 hours a year in each following year. The leave can be used for an employee's or the employee's child's illness or injury, treatment of an illness or injury, diagnosis, and preventive medical care. It can also be used for reasons related to an employee who is a victim of family violence or sexual assault.

It exempts manufacturing employers that provide some form of paid leave at a rate equal to or greater than the bill requires. It includes all other private sector and public sector employers with 50 or more persons. It deems an employer to be in compliance with its requirements if the employer offers paid leave that can be used for the same purposes and in the same conditions.

The paid sick leave benefit applies to employees (1) paid at an hourly rate or (2) subject to the minimum wage and overtime compensation requirements of the federal Fair Labor Standards Act (FLSA) (see BACKGROUND). Exempted from the bill are (1) employees under 18 years old, (2) day or temporary workers, and (3) certain state college or university employees, including part-time or adjunct faculty members.

The bill permits employers to place certain requirements on employees seeking to use paid sick leave under various circumstances.

It bans employers from retaliating or taking discriminatory action against an employee because the employee requests or uses paid sick leave as provided by the bill.

It allows complaints to be filed with the labor commissioner, who must administer the law within available appropriations. Employers who violate the bill are liable to the Labor Department for a civil penalty of $ 600 for each violation. The commissioner may award appropriate relief, including rehiring or payment of back wages. Parties may appeal the commissioner's decision to Superior Court.

The bill specifies that it does not preempt the terms of any union contract that is effective before January 1, 2010 or diminish any rights provided to any employee under a union contract. Also the bill does not prohibit an employer from establishing a policy allowing employees to donate accrued sick leave to another employee nor prohibit paid sick leave plans that are more generous than the bill requires.

It requires employers to provide notice to covered employees of the bill's provisions and all rights due the employees. The commissioner may develop related regulations requiring employers to provide additional means of notifying employees.

*House Amendment “A” (1) changes the required number of hours an employee must work to be eligible for paid sick leave, (2) reduces the number of paid sick leave hours that can be accrued and used, (3) exempts employees under age 18 from its provisions, (4) exempts manufacturers that provide some form of paid leave at a rate equal to or greater than the bill requires, and (5) specifies it does not prohibit an employer from allowing employees to donate accrued sick leave to another employee.

EFFECTIVE DATE: January 1, 2010

2 — PAID SICK LEAVE

The bill requires employers to provide their employees with paid sick leave accruing, from the time the employee has worked 520 hours (40 hours a week for 13 weeks) within 12 months, at a rate of one hour for every 40 hours worked. Employees may accrue and use up to 32 hours of sick leave in 2010 and accrue and use up to 40 hours a year in each following year.

Once employed for 1,040 hours (40 hours a week for six months), employees are entitled to use accrued sick time. Employees who are already working on the bill's effective date, July 1, 2010, are entitled to use accrued sick time after working 1,040 hours after that date.

Each employee can carry over from one year to the next up to 40 hours of accrued paid sick leave.

The bill defines “employer” as any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company, or any other entity, including public sector employers, that employs 50 or more workers in Connecticut. But it excludes manufacturing employers, those falling under North American Industry Classification System (NAICS) sectors 31-33, that provide some form of paid leave at a rate equal to or greater than the bill requires. NAIC sectors 31 -33 includes businesses engaged in the mechanical, physical, or chemical transformation of materials and components into new products (see BACKGROUND).

It does not specify what paid leave means in the context of this exemption, but presumably it could include vacation, personal, sick, or other time off.

Other Complying Leave

Any employer that offers employees other paid leave that can be used for the same purposes and under the same conditions as sick leave under the bill is deemed to be in compliance. To be a complying plan the paid leave must be accrued at a rate equal to or greater than the rate the bill requires. Under the bill, “other paid leave” may include, but is not limited to, flextime, compensatory time, paid vacation, personal days, or paid time off.

The bill specifies that it does not prevent employers from providing a more generous paid leave policy than the bill requires.

Hourly Pay Rate for Sick Leave

The bill requires each employer to pay an employee for sick leave at a pay rate that is the greater of (1) the normal hourly wage for that employee or (2) the minimum hourly wage in effect for the period when the employee used paid sick leave.

Working “Catch up” Hours in Lieu of Sick Leave

The bill allows an employer and employee, by mutual agreement, to have the employee work additional hours or shifts to catch up on time missed in lieu of using accrued paid sick leave. The catch-up time must be in the same or following pay period, and the employer is prohibited from requiring the employee to work extra time instead of using paid sick leave.

1 — COVERED AND EXEMPT EMPLOYEES

Under the bill, “employee” means anyone engaged in service to an employer in the employer's business who is (1) paid at an hourly rate or (2) subject to the minimum wage and overtime compensation requirements of the FLSA. Generally, managers who have authority to hire and fire staff, professional occupations (such as lawyers and physicians), and salespeople are exempt from these requirements (see BACKGROUND).

The bill exempts (1) employees under 18 years old, (2) day or temporary workers and (3) certain state college or university employees.

It defines a “day or temporary worker” as one who performs work for another on (1) a per diem basis or (2) an occasional or irregular basis for only the time required to complete the work, whether such individual is paid by the person for whom such work is performed or by an employment agency or temporary help service, as defined by law.

The bill exempts the following employees of state colleges and universities: (1) part-time or adjunct faculty members, (2) university assistants who work less than 20 hours a week, and (3) educational assistants or other part-time professional employees.

3(A) — PERMITTED USES

Under the bill, an employer must permit an employee to use paid sick leave for the following reasons:

1. an employee's or the employee's child's illness, injury, or health condition;

2. the medical diagnosis, care, or treatment of such a condition; or

3. preventive medical care for an employee or the employee's child.

“Child” is defined as a biological, adopted, or foster child, stepchild, or legal ward of the employee.

An employer must also allow an employee to use paid sick time when the employee is the victim of family violence or sexual assault:

1. for medical care or psychological or other counseling for physical or psychological injury or disability,

2. to obtain services from a victim services organization,

3. to relocate, or

4. to participate in any related civil or criminal legal proceeding.

The bill uses the existing statutory definitions for “family violence” and “sexual assault.

It specifies that its provisions cannot be deemed to require an employer to provide paid sick leave for any purpose other than those stated in the bill.

3(B) — PERMITTED EMPLOYEE REQUIREMENTS

The bill permits employers to place certain requirements on employees seeking to use paid sick leave under various circumstances. If the need to use paid sick leave is foreseeable, an employer can require advance notice of the intention to take leave not more than seven days before the date the leave is to begin. If the leave is not foreseeable, an employer can require an employee to give notice as soon as feasible.

For leave of three or more consecutive days, an employer can require reasonable documentation that the leave is being taken for the purposes permitted by the bill. Table 1 shows how the bill defines reasonable documentation.

Table 1: Documentation Needed for Sick Leave

Type of leave

Documentation

Mental or physical illness, treatment of an illness or injury, mental or physical diagnosis, or preventive medical care for the employee or the employee's child

Documentation signed by the health care provider treating the employee or the employee's child and indicating the need for the number of days of such leave

Related to the employee being a victim of family violence or sexual assault

A court record or documentation signed by an employee or volunteer working for a victim services organization, an attorney, police officer, or other counselor involved with the employee

4(A) — RETALIATION PROHIBITED

The bill bans any employer from taking retaliatory personnel action or discriminating against an employee because the employee (1) requests or uses paid sick leave as provided in the bill or (2) files a complaint with the labor commissioner alleging an employer violated the bill.

The bill defines “retaliatory personnel action” as a termination, suspension, constructive discharge, demotion, unfavorable reassignment, refusal to promote, disciplinary action, or any other adverse employment action taken by an employer against an employee.

4(B) — PENALTIES

Violators are liable to the Labor Department for a civil penalty of $ 600 for each violation. Before imposing a penalty, the labor commissioner must find, by a preponderance of the evidence, that the employer violated the bill. The commissioner also may award appropriate relief, including rehiring or reinstating the person, back wages, and reestablishing employee benefits for which the employee would have been eligible if not for the retaliatory action or discrimination.

5 — EMPLOYEE NOTICE

Each employer subject to the bill must provide notice to each employee at the time of hiring that:

1. the employee is entitled to sick leave, the amount of sick leave provided, and the terms under which sick leave may be used;

2. retaliation by the employer against the employee for requesting or using sick leave is prohibited; and

3. the employee has a right to file a complaint with the labor commissioner for any violation of the bill.

An employer can comply with this requirement by displaying a poster that contains the required information in English and Spanish in a conspicuous place, accessible to employees, at the employer's place of business. The bill authorizes the commissioner to adopt regulations to establish additional notice requirements.

BACKGROUND

NAICS

The North American Industry Classification System (NAICS) is the standard used by federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U. S. business economy. NAICS was developed under the auspices of the Office of Management and Budget and adopted in 1997 to replace the Standard Industrial Classification (SIC) system.

Fair Labor Standards Act (FLSA)

The federal FLSA establishes a federal minimum wage, requires employers to provide overtime pay, restricts child labor, and prohibits pay based on gender. Certain occupations are exempt from it provisions, mainly managerial, professional, and commission-based sales jobs.

The FLSA sets the floor for certain workplace standards and Connecticut law often mirrors it (in the case of most child labor protections) or provides a greater benefit for the employee (in the case of a higher minimum wage).

Legislative History

The House referred the bill (File 67) to the Appropriations Committee on May 5. The committee reported out a substitute that added the exemption of certain higher education employees, changed the qualifying work period to 1,040 hours and specified what constitutes other complying leave provided by an employer.

COMMITTEE ACTION

Labor and Public Employees Committee

Joint Favorable Substitute

Yea

8

Nay

3

(03/03/2009)

Judiciary Committee

Joint Favorable

Yea

26

Nay

16

(04/27/2009)

Appropriations Committee

Joint Favorable Substitute

Yea

34

Nay

19

(05/11/2009)