ARE YOU READY for Public Act No. 11-52

ARE YOU READY for Public Act No. 11-52, which mandates certain employers to provide paid sick leave to employees, effective January 1, 2012?

By Hugh W. Cuthbertson

On July 1, 2011, the Connecticut legislature passed Public Act No. 11-52, mandating any person or business employing 50 or more individuals to provide annual paid sick leave of up to 40 hours per calendar year to its “service workers.” The new law is effective January 1, 2012.

“Service workers” are defined in the Act as an employee primarily engaged in an occupation with one of the occupation code numbers and titles, as defined by the federal Bureau of Labor Statistics Standard Occupational Classification system or any successor system. Those codes are provided in the definition section of the Act – 1(7) – and are also found as an attachment to the “guidance” published by the Connecticut Department of Labor (“CTDOL”) on November 18, 2011 in an effort to help explain the Act’s provisions.

The CTDOT guidance, entitled “Guidance from the Connecticut Department of Labor Regarding Public Act 11-52; An Act Mandating Employers Provide Paid Sick Leave to Employees,” was issued to assist human resource professionals in Connecticut in their efforts to comply with the new law. However, a number of the Act’s provisions need to be looked at closely and carefully. Here are several examples.

● The Act excludes from its definition of employer 1) any business establishment classified in sector 31, 32 or 33 in the North American Industrial Classification System (these sectors consist of manufacturers), or 2) Internal Revenue Code Section 501(c)(3) tax exempt organizations providing recreation, child care and education services. Although manufactures are generally excluded from the Act’s coverage, there are some exceptions as a result of the NAICS use of the words “enterprise” to refer to an entire company and “establishment” to refer to a “single physical location.” Under the new law each establishment must be assessed separately to determine if the primary business activity falls within the excluded NAICS sectors. Thus, an employer may have one facility that is subject to the law and other facilities that are not. In addition, if an employer has two or more buildings in a “campus” setting, the campus is considered one physical location and its coverage under or exemption from the law will depend on its primary activity. Thus, some degree of analysis needs to be done in assessing whether an employer is covered or not.

• Although the new law only applies to employers with 50 or more employees, the calculation of the number of employees is made by determining whether an employer employed “50 or more individuals in the state in any one quarter in the previous year.” Thus, because the calculation of the number of employees is not made by means of a headcount at any one time, but during the course of an entire quarter, employees hired and fired during the quarter must be counted, resulting in coverage for employers who have a headcount of less than 50 employees, but who have employed at least 50 employees cumulatively over the course of a quarter.
• Although the new law provides that only “service employees” must be given the required paid sick leave, the statute’s anti-retaliation provision applies to all employees, regardless of whether they are service employees. Thus, the statute prohibits a covered employer from taking retaliatory personnel action or discriminating against any employee who requests or uses paid sick leave in accordance with the employer’s own paid sick leave policy or who files a complaint with the CTDOL alleging the employer’s violation of the Act.
• The new statute provides that paid sick leave is to be accrued in a minimum of one hour increments. Although the statute says nothing about the increments in which employees may use paid sick leave, the CTDOL has stated in its published “guidance” that service workers must be allowed to use paid sick leave in one hour increments, regardless of the employer’s timekeeping system. Furthermore, service workers may not use paid sick leave in lesser increments, unless allowed by the employer.

Employers who are uncertain regarding whether it is subject to the new law and whether, if so, its policies are in compliance with its provisions should consult with their lawyer.