Employers trying to enforce attendance policies confront a poker hand of laws that protect the rights of employees to different types of work leave. Indeed, an employee out on leave can be eligible for various types of leave including Workers Compensation, the federal Family and Medical Leave Act (FMLA), Connecticut FMLA, the Americans with Disabilities Act (ADA), and Connecticut’s Fair Employment Practices Act (FEPA), all at the same time. Hence, employers can violate a number of statutes in an effort to get employees to come to work or by terminating the employment of employees who won’t or can’t work.
This year, Connecticut added the Paid Family and Medical Leave Act which only adds to the confusion. We will try to provide some FMLA clarity in this article. Each statute must be analyzed separately in any leave situation.
Prior to January 1, 2022, Connecticut FMLA applied to employers with 75 or more employees. Effective this year, the Connecticut FMLA applies to virtually all private sector employers regardless of size.
Connecticut Paid Leave is a separate law from the Connecticut FMLA. While leave under Connecticut and federal FMLA was previously unpaid, Connecticut Paid Leave now provides up to 12 weeks of pay annually from the State upon application by the employee. Connecticut Paid Leave is administered by the state, with the employer’s cooperation, while the Connecticut FMLA is administered by the employer.
Connecticut FMLA and the federal FMLA also have different eligibility requirements and reasons for leave, although there is substantial overlap. The result is that an employer that is subject to both Connecticut and federal FMLA (e.g., with 50 or more employees) MUST separately determine applicability.
For example, an employee takes 12 weeks of leave under the Connecticut FMLA to care for their father with a serious health condition. The employee is paid though Connecticut Paid Leave. The leave also qualifies for concurrent unpaid leave under federal FMLA. Later the same year, the employee wants to take 12 weeks to care for their brother with a serious health condition. The employee is not entitled to any additional leave because the employee has exhausted both the State and Federal FMLA Leave banks.
Now flip the order. First, the employee takes leave for the brother and then for the father. The employee uses 12 weeks under Connecticut FMLA and gets paid through Connecticut Paid Leave. But the brother is not a covered family member under federal FMLA, so the employee has not touched that leave bank. So, when the employee wants to take 12 weeks off for the father, the employee still has 12 weeks of unpaid leave available under federal law. If an employer gets this wrong and denies the leave, the employee may have a case for FMLA interference under the federal law.
That is why it is important to analyze each scenario through each framework so you can avoid singing those FMLA blues!