Leaves of Absence Articles

 The Second Circuit Court of Appeals recently held that employees bringing claims of
retaliation under the federal FMLA need only prove that their exercise of FMLA rights was a
“motivating factor” in an adverse employment action, and not the “sole factor.” Woods v Start
Treatment and Recovery Centers. This case reverses the Second Circuit’s previous position on
the issue.

 The plaintiff worked as a substance abuse counselor for defendant. She took FMLA
leave to deal with a legitimate medical condition. Within 3 weeks of returning to work from
leave, she was fired. Defendant claimed it was due to her well documented poor performance.
Plaintiff argues it was due to her exercise of FMLA rights.

 The District Court found for the company. The Second Circuit vacated the decision
because it concluded the District Court relied on the wrong section of the law, and the incorrect
standard of proof, when rendering its decision.

 The Circuit Court reviewed two sections of the FMLA that arguably applied. Section
2615(a)(2), which was used by the District Court, prohibits an employer from discharging or
discriminating against an employee for opposing any practice made unlawful by the Act. Under
this section, the District Court held that the “but for” standard applied, and an employee must
show that the sole reason for termination was retaliation for exercising FMLA rights.

 The Second Circuit, however, relied on section 2615(a)(1), which makes it illegal to
interfere with, restrain, or deny any right provided by the law. It discussed how retaliation for
exercising actual FMLA rights, in contrast to retaliation for opposing some practice, is more
aptly covered under 2615(a)(1) than (a)(2). In addition, it also ruled that the lower “motivating
factor” standard applies to section 2616(a)(1), and not the higher “but for” standard. The Court
left open whether the “but for” or “motivating factor” standard applies to section 2615(a)(2)
retaliation claims based on the opposition theory.

 As a result of the Court’s decision, plaintiff’s claims will again be examined by the
District Court using the newly enunciated standard to see if her exercise of FMLA rights was at
least a motivating factor in the termination decision. If so, she wins, as she no longer has to
prove it was the sole factor.

 The ruling eases the burden employees must meet when bringing retaliation claims after
exercising FMLA rights.

 Effective November 29, 2016 federal contractors are required to provide employees with
up to 56 hours of annual paid sick time. Executive Order 13706. Since Connecticut already
requires certain employers to provide certain employees up to 40 hours per year of paid sick
time, such employees whose employer is also a federal contractor will only receive an additional
16 hours of paid time off each year. Also, employers with PTO policies that provide an equal or
greater amount of paid time off, which can be used as outlined by the new Order, do not need to
provide additional paid sick time under the Order.

 The requirement covers new contracts and replacements of expiring contracts with the
federal government that result from solicitations on or after January 1, 2017. Employees must
accrue 1 hour of paid sick leave for every 30 hours worked “on” or “in connection with” a
covered federal contract, capped at 56 hours (7 days) in a year.

 Employees that work “on” a covered contract are those that are performing the specific
services called for by the contract. They are covered, regardless of the number of hours worked
in a year and regardless of whether they are full or part time. Employees that work “in
connection” with a covered contract are those that perform work activities that are necessary to
the performance of the contract, but are not directly engaged in the specific services called for in
the contract. An employee who spends less than 20% of his or her hours working “in
connection” with a covered contract in a workweek is not covered.

 Alternatively, employees can be provided at least 56 hours of paid sick leave at the
beginning of each accrual year rather than requiring employees to accrue leave based on hours
worked.

 Employees must be notified in writing of the amount of paid sick leave they have
available at the end of each pay period or each month, whichever interval is shorter.

 Employees may take time off in 1 hour increments, unless their work makes it physically
impossible to leave or return to the job during a shift, and can use the time for their own illness
or other health care needs, for the care of a loved one who is ill, for preventive health care for
themselves or a loved one, for purposes resulting from being the victim of domestic violence,
sexual assault, or stalking, or to assist a loved one who is such a victim. During the leave,
employees must be given their regular pay and benefits, except that they need not earn additional
paid sick leave during that time.

 Employers can require employees using paid sick leave to provide certification from a health
care provider showing the need for leave, if the leave lasts 3 or more consecutive days.

 Employees may carry over up to 56 accrued, but unused paid sick leave from one year to the
next, however the amount of paid sick leave employees may have for use at any one time can be
limited to 56 hours. The integration of the carryover and accrual rules gets complex and the DOL
has provided the following information to help manage the law:

 If an employer front loads the sick time bank with 56 hours, and an employee carries
over 16 hours of paid sick leave from the prior year, the contractor must permit the
employee to have 72 hours (16 hours plus 56 hours) of paid sick available for use at any
time during the second year. This scheme differs from Connecticut law, which
effectively prevents an employee from carrying over any unused time when an employer
front loads their bank.

 If, however, an employer uses the accrual method, any paid sick leave carried over
from the previous year shall offset the amount of time an employee may be able to accrue
at any given time during the second year. For example, if an employee carries over 16
hours of paid sick leave into the second year, she must be permitted to accrue 40
additional hours of paid sick leave. Once she has 56 hours of paid sick leave accrued, the
contractor may prohibit her from accruing any additional leave until the workweek after
she uses some portion of the 56 hours. For instance, if, after reaching the 56-hour cap, she
uses 24 hours of paid sick leave (16 hours of the carryover and 8 hours accrued in the
current year), she must be permitted to accrue up to at least 16 more hours (in addition to
the 40 hours she has already accrued during the second year) for a total of 56 hours
accrued in that year.

 If an employee is rehired by the same contractor within 12 months after a job separation,
the employee is entitled to reinstatement of any accrued, unused paid sick leave, unless the
contractor already paid out the employee upon separation.

 More information can be found on the U.S. Department of Labor’s website in its Fact
Sheet and Overview.

 Effective October 1, 2014, several important changes to the Connecticut Paid Sick Leave
law take effect. Public Act 14-128. To be covered by the law an employer must employ 50 or
more employees in Connecticut. To determine compliance with the 50 employee threshold
employers previously measured their workforce each quarter during the prior calendar year. If in
any one quarter they had at least 50 employees they were required to comply with the law
beginning the following January 1. Now, employers need only measure their workforce once,
during the week in which October 1 falls. If during that week the workforce has at least 50
employees, the employer must comply with the law beginning the following January 1.

 To prevent tampering with the workforce numbers, the Act makes it unlawful to
terminate, dismiss, or transfer to another site, any employee for the sole purpose of not
qualifying as an employer under the Act. In addition, radiologic technologists will now gain
coverage under the law.

 Further, the Act will now permit an employer to designate any 365 day period as the
leave accrual period, instead of being limited to using a calendar year accrual period.

 For more information about the law, please see my previous article Employer’s Guide to
Connecticut’s Paid Sick Leave Law, or contact scott@schaffer-law.com or 860-216-1965.

 The U.S. Department of Labor recently provided guidance on when employees may take
federal FMLA leave to care for an adult child who is incapable of self-care because of a
disability. The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-
protected leave during a 12-month period to care for a son or daughter with a serious health
condition. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18
years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or
physical disability.”

 Under this definition, an employee may take FMLA leave to care for a child under 18
years of age, without regard to whether the child has a disability. An employee must only show
a need to care for the child due to a serious health condition.

 However, if the child is 18 years or older, the employee must show the “son or daughter”
has a mental or physical disability and is incapable of self-care because of that disability. In
defining “mental or physical disability,” the Americans with Disabilities Act’s (ADA) definition
of “disability” applies. That is, “a physical or mental impairment that substantially limits a
major life activity,” as amended by the broader definitions contained in the Americans with
Disabilities Act Amendments Act (ADAAA).

 Assuming the child is disabled, as defined by the ADAAA, he or she must also be
“incapable of self-care because of the disability” to meet the definition of a covered “son or
daughter.”

 The new regulations define “incapable of self-care because of mental or physical
disability” to require “active assistance or supervision to provide daily self-care in three or more
of the activities of daily living or instrumental activities of daily living.” More specifically an
employee requesting leave must show all the following are met: The adult son or daughter (1)
has a disability as defined by the ADAAA, regardless of how old the child was at the time the
disability began; (2) is incapable of self-care due to that disability; (3) has a serious health
condition; and (4) is in need of care due to the serious health condition.

 The guidance also pertains to military caregiver leave. Under the military caregiver
provision of the FMLA, a parent of a covered servicemember who sustained a serious injury or
illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other
requirements are met. Now, when the injured servicemember requires care beyond the initial 12
month caregiver period, the FMLA will allow parents to continue such care of their wounded
adult child as long as all other FMLA requirements are met.

 The Connecticut Supreme Court recently held that the Connecticut Family and Medical
Leave Act (CTFMLA) only covers employers with at least 75 Connecticut based employees.
Velez v. Commissioner of Labor, 306 Conn. 475 (2012). The decision clarifies that employers
with a total workforce of 75 or more employees are not covered by the Act, if they employ fewer
than 75 employees in Connecticut.

 The case arose when an employee of a company employing over 1000 employees
nationwide, but only 35 in Connecticut, sued the company for violating the CTFMLA when it
terminated her for failing to return to work at the expiration of a company provided leave of
absence. The Department of Labor Hearing Officer found she was not covered by the Act
because the company employed less than 75 employees in Connecticut.

 The employee appealed and the trial court found in her favor, ruling the 75 employee
threshold was met if an employer employed at least 75 employees, including those working
outside the state.

 The Supreme Court, relying on the Department of Labor’s regulations, reversed. Those
regulations provide that the only employers covered by the Act are those that employed at least
75 employees in Connecticut on October 1 of the year prior to the alleged violation, regardless of
the number of employees it may have employed elsewhere.

 The Court also stated the regulations served to harmonize state and federal law. Under
the federal FMLA employers with 50 or more employees are covered, regardless where those 50
employees work, unless the employee claiming coverage works at a facility with fewer than 50
employees, and the employer employs less than 50 employees within a 75 mile radius of the
employee’s facility. For instance, if the employee works at a site with 25 employees, and the
employer employs another 10 employees within 75 miles of the site, the employee is not
covered. Conversely, if the employer employs another 30 employees within 75 miles of the
employee’s worksite, the employee is covered. For federal FMLA purposes, an employer is
covered if it meets the 50 employee threshold for each working day during 20 or more
workweeks in the calendar year in which coverage is sought, or in the preceding calendar year.

 The rationale for the federal 50 employee/75 mile radius exception was to lessen the
burden even on large employers who have small numbers of employees in particular locations.
This same concept applied to the Court’s reasoning in finding that large employers with less than
75 employees in Connecticut should not be held to the state’s leave law requirements.

 In sum, employers with less 75 employees in Connecticut are exempt from coverage
under the CTFMLA, and those with less than 50 employees in a 75 mile radius are also exempt
from covering those employees under the federal FMLA.

 The U.S. Department of Labor issued a set of revised regulations covering the Family and
Medical Leave Act (“FMLA”), which go into effect January 16, 2009, and provide guidance on a
number of key areas that employers have struggled with since the law’s enactment in 1993.
While some of the major changes are covered below, the new regulations are available at:
www.dol.gov/esa/whd/fmla/finalrule.pdf.

 Employees who have worked with an employer for 12 months are eligible for FMLA
protection. As in the past, the employee need not work 12 consecutive months, but the new
regulations state that employment periods prior to a break in service of seven (7) years or more
need not be counted in determining eligibility, subject to some exceptions.

 The new regulations also discuss “serious health conditions” for incapacities of more
than three consecutive calendar days accompanied by either (a) two or more treatments by a
health care provider or (b) one treatment by a healthcare provider which results in a regimen of
continuing treatment under the supervision of the health care provider. The new regulations
clarify that (1) the period of incapacity must be “more than three, consecutive, full calendar
days;” (2) treatments by a health care provider require an “in-person visit to a health care
provider;” (3) “two or more treatments” must be within the first 30 days of incapacity, absent
extenuating circumstances; (4) the first treatment visit must take place within seven days of the
first day of incapacity; and (5) any determinations of whether additional treatment visits or
regimens of continuing treatment are necessary shall be made by the health care provider, not the
employee.

 Under the old regulations, employers generally had two (2) business days after learning
of the employee’s FMLA-qualifying condition to notify the employee that the leave would be
designated as FMLA leave. The new regulations give employers five (5) business days.

 The old regulations only permitted physicians representing the employer to seek
clarification and/or authentication of medical certifications. Now employers may contact an
employee’s health care provider directly once certain conditions have been met. Also, whereas
the old regulations generally limited fitness-for-duty certifications to a simple statement of an
employee’s ability to return to work, employers may now require fitness for duty certifications
that address an employee’s ability to perform the essential functions of the job.

 Under the old regulations, employers were prohibited from imposing any limits on the
substitution of paid vacation or personal leave for unpaid-FMLA leave. Now, an employee’s
ability to substitute accrued paid leave for unpaid FMLA leave is determined by the terms and
conditions of the employer’s normal leave policy.

 The old regulations did not address whether failure to work mandatory overtime counted
as FMLA leave. The new regulations state that where an employee normally would be required
to perform overtime work, the employee may be charged FMLA leave for the overtime hours not
worked.

 The new regulations also contain new FMLA prototype forms, which are available online
at http://www.dol.gov/whd/forms/index.htm.