For months, employers have been eagerly awaiting updated regulations that address the revisions to the Connecticut Family and Medical Leave Act. At last, on March 22, 2022, the Connecticut Department of Labor (“CT DOL”) released its final proposed amended CTFMLA regulations, answering questions that had remained unanswered by the revised law. Indeed, the proposed regulations amend several key provisions of the prior CTFMLA regulations. Here are the key highlights for employers:
Changes to coverage and eligibility status.
Under the old regulations and law, an employee was required to work for 12 months before becoming eligible for CTFMLA leave. Under the proposed regulations, this timeframe has been significantly decreased to three consecutive months. Notably, 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.
Covered family members – that is, those family members that an employee can seek leave to assist — now includes 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, and coverage for a son or daughter is no longer limited to the age of 18. Instead, the proposed regulations extend coverage to a son or daughter of any age.
Because the old regulations were written before the passage of the Connecticut’s Paid Leave laws, the old regulations did not address what it means for an employee to substitute accrued paid leave for unpaid CTFMLA leave, or whether an employee could retain a certain amount of paid leave. The proposed 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 CTFMLA leave.
Employers may require employees seeking leave for an individual equivalent to a family member to provide certain evidence.
The old regulations did not address the types of evidence an employer could request an employee seeking leave to care for an individual equivalent to a family member. The proposed regulations provide that an employer may require an employee seeking leave for such a person to provide a written statement, signed by the employee, describing and verifying that the employee considers his or her relationship with that person to be equivalent to that of one with a family member (i.e., the relationship must involve a “significant personal bond”).
Additional leave for incapacitation related to a serious health condition during pregnancy.
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.
Requalification for benefits is not required.
The old regulations did not address whether an employer could require an employee returning from leave to requalify for any benefits enjoyed prior to going on leave, whereas the proposed regulations make clear that an employer may not require an employee to requalify for benefits upon his or her return to employment.
Employers have broader notification requirements.
Under the old regulations, an employer only had to notify eligible employees of their leave rights. Under the proposed regulations, an employer must distribute a notice or policy to all employees concerning the CTFMLA. Additionally, an employer must notify an employee of his or her eligibility to take CTFMLA leave no later than five business days after receiving a request to take such 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.
Employers will be able to request recertification in less than a 30-day period.
Under the old regulations, an employer could not require an employee to provide recertification more than once in a 30-day period. Under the proposed regulations, employers may 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 proffered reason for the absence or the validity of the certification.
Employees will be able to file suit directly in court.
An employee alleging a violation of their CTFMLA rights under the old regulations was required to first bring a claim before the CT DOL before filing suit in court. The proposed 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 CT 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.
While these proposed amendments are still pending approval, it’s unlikely that we’ll see many significant changes to these regulations. Therefore, employers should review existing policies and practices to ensure compliance with these regulatory changes. While the CTDOL certainly provides a useful base of knowledge for employers, employers should consult with their employment counsel for more information relevant to these proposed amendments and how these regulations impact their specific business. As a reminder, an employer covered under the CTFMLA does not include a municipality, a local or regional board of education, or a nonpublic elementary or secondary school.