COVID-19: Paid Sick Leave Benefits Extended for CT School Staff

Governor Lamont Issues Executive Order No. 10 Extending Emergency Paid Sick Leave Benefits for Eligible Employees of Connecticut Local and Regional Boards of Education

By: Kyle McClain

February 5, 2021

Yesterday, Governor Lamont signed Executive Order No. 10 which contains several orders on various topics including filing requirements, relaxing limits on religious gatherings, and absentee voting, but most important for schools and employers in general is an order extending expired emergency paid sick leave benefits for previously eligible employees of “all local and regional boards of education” for the duration of the declared public health and civil preparedness emergencies.

Specifically, Executive Order No. 10 states, at paragraph 6:

“Paid Leave Requirements for Staff of Local and Regional Boards of Education. Effective December 31, 2020, and for the duration of the public health and civil preparedness emergencies, unless earlier modified by me, all local and regional boards of education shall continue to make available paid leave for eligible employees as provided for in this Section. Such leave shall be administered consistent with the leave provisions of Division E, the Emergency Paid Sick Leave Act (EPSLA), of the Families First Coronavirus Response Act (FFCRA) to permit full-time employees 80 hours of paid leave and allow part-time employees leave for the number of hours that such employee works, on average, over a 2-week period. Nothing in this Section shall increase the overall duration of leave available to school staff or to require additional leave for staff who, prior to December 31, 2020, used any portion of or the maximum available leave under the EPSLA. The State of Connecticut shall be exempt from the provisions of this Section because its existing implementation of Section 5-248(a) of the Connecticut General Statutes allows state school employees comparable access to paid leave.”

As school employers are no doubt aware, the Emergency Paid Sick Leave Act (EPSLA) was a federal law enacted as part of the Families First Coronavirus Response Act (FFCRA) back in March 2020. In short, the EPSLA required covered employers–including most public sector employers–to provide up to 80 hours of paid sick leave for most employees for six identified COVID-19 related reasons, paid either at the employee’s full regular rate of pay (up to $511 per day) or two-thirds of the employee’s regular rate of pay (up to $200 per day) depending on the reason for leave. You can find our previous discussion of the basic requirements of the EPSLA here: COVID-19: Federal Employment Leave Action-the FFCRA. The EPSLA only required employers to provide that leave, however, through December 31, 2020, a date which was never extended by U.S. Congress. Therefore, the prescriptive effect of the EPSLA effectively expired on that date (effectively on that date because certain private employers still remain eligible to claim tax credits if they elect to continue to provide leave under the FFCRA).

Although the order is short on detail, the unambiguous practical effect is that local and regional boards of education must continue to provide emergency paid sick leave according to the requirements of the EPSLA and the US DOL’s federal regulations adopted pursuant thereto for the duration of any declared Connecticut state public health and civil preparedness emergencies (the current emergency declaration expires on  April 20, 2021 but is likely to be extended). Some important takeaways:

1. The Order is clear that it does not provide additional benefits, e.g., an additional 80 hours of leave, but merely extends the period of time during which employees may use that leave.

2. The Order does not extend expanded family and medical leave benefits under the Emergency Family and Medical Leave Expansion Act (EFMLEA) which was also a part of the FFCRA. That federal law expanded traditional family and medical leave eligibility to employees unable to work (or telework) because they are caring for a minor child whose school is closed or if their childcare provider is unavailable due to the COVID-19 outbreak and required that an employee taking such leave be paid up to two-thirds of the employee’s regular rate of pay. School employers should continue to consider the EFMLEA expired.

3. While the Order was only signed yesterday on February 4, 2021, paragraph 6 provides that the paid sick leave extension is effective December 31, 2020, or before the prescriptive effect of the EPSLA expired. Therefore, it appears that the paid sick leave extension is intended to be retroactive to December 31, 2020, although the Order is ambiguous on that point because it does not explicitly state that it is intended to be retroactive; additional guidance from the Governor’s office would be appreciated. So what is the retroactive affect? Clearly, without a time machine, school employers cannot go back to January and grant leave requests that may have been denied. But what is within reason is that if employees utilized other employer-provided leave for EPSLA covered reasons, employers may be required to credit those leave hours/days back, or if employees used unpaid leave for EPSLA reasons, employees may have to be paid for that time. Whether or not leave used since January 1, 2021 qualifies for retroactive coverage will have to be addressed on a case-by-case basis.

4. This extension of paid sick leave benefits applies only to “eligible employees” of “all local and regional boards of education.” The Order was not accompanied by its own press release, and only publicized as part of one of the Governor’s regular “Update[s] on Conneticut’s Coronavirus Response Efforts,” which described the extension as “[r]equested by teachers and vetted by superintendents . . . .” Why this extension applies only to public boards of education, and whether municipal or private sector employers should be on the lookout for future extensions–particularly ones that might be written as retroactive–is unknown. But uncertainty has certainly been a hallmark of COVID-19 to date, so nothing can be ruled out.

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.