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Firm News On Sunday, March 1, 2020
By Attorneys Charles P. Reed and James E. Ringold of Loughlin FitzGerald, P.C.
Whether it’s the birth of a child, your own health problems, or those of a family member, personal and medical issues can be extremely disruptive. There is the stress of the issue itself and, of course, the ever-present worry of paying for everything. Moreover, things like care, recovery, and doctor’s visits just take time, plain and simple. This can be disruptive for working men and women, forcing them to take time off to handle matters at home. Federal law has provided many workers some protections since the 1993 passage of the “Family and Medical Leave Act” (FMLA), and Connecticut has had similar protections in state law since 1996.
However, the protections these laws offered to Connecticut citizens has involved unpaid time off from work. This past June, however, Connecticut passed new legislation, joining just a handful of states to offer paid benefits to employees with medical issues. This law goes into effect over the next couple years and we at Loughlin FitzGerald want to ensure our fellow Wallingford residents fully understand their rights.
The FMLA generally provides two related protections to employees suffering from family and medical issues: (i) the right to up to 12 weeks (in a 12-month period) of unpaid leave and (ii) a right to return to your job, without termination, demotion, punishment, or other retaliation for having taken that leave. Connecticut’s current state law is somewhat different—allowing up to 16 weeks of unpaid leave in a 24-month period—but this is changing with the new law, and the protections are otherwise similar. An employer is not required to return you to the exact same job following the leave. However, the FMLA requires that it be “equivalent” in terms of pay, benefits, and other terms and conditions. So, your boss cannot demote you or dock your pay when you return as punishment for taking this guaranteed leave. The FMLA also bars employers from interfering in your taking that leave.
Both the federal and state FMLA laws only apply to certain workers at certain employers in certain circumstances. The specifics can be quite complicated, and we would recommend contacting a qualified attorney if you have questions about the details of your particular situation. In general, however, the federal FMLA only applies if the business employees 50 or more people. Connecticut’s equivalent currently only applies to businesses with 75 or more employees though, as we discuss later on, that is changing.
Additionally, the FMLA’s protections generally only apply to employees who have worked for their company for at least 12 months and who have worked at least 1250 hours for them in the prior 12 months. Connecticut is similar—currently requiring 12 months of service and at least 1000 hours of work—but these requirements are also changing.
Finally, the FMLA only permits leave for certain reasons. Primarily, it allows leave because of (i) the birth or adoption of a child, (ii) to recover from a serious illness, or (iii) to care for a seriously ill family member. Leave may also be permitted to allow you to handle the affairs of a family member on active military deployment abroad; to care for a family member who suffered serious injury in the line of duty while on active military service; or, in Connecticut, to serve as an organ or bone marrow donor. Again, if an issue arises, we would recommend contacting an attorney to discuss your particular situation.
There are other potentially-important details to your FMLA rights. For example, both the federal and state laws allow an employer to “substitute” other time off an employee has accrued in providing FMLA leave. So, for example, if you have two weeks of sick days and a week of vacation saved up, your employer is allowed to use that up for the first few weeks of your FMLA leave. Also, while you are generally required to take all of your leave following a birth or adoption all at once, both state and federal law permit you take leave for other reasons on an intermittent basis. For example, if you receive treatment for a serious condition once a week on Thursday, you may be able to use your FMLA leave intermittently, just on Thursdays.
Imagine Margaret just gave birth, or Fred suffered a heart attack and needed to recuperate, or Jane’s son was in a serious car accident and needed regular care and treatment. Without the FMLA, they would either have to force themselves back to work before they should, or miss time and count on the kindness of their boss to protect their job, with no guarantees. Although FMLA leave is unpaid, it offers some minimal protections against life’s unavoidable complexities.
Changes to Connecticut’s FMLA
On June 25, 2019, the governor signed major changes to Connecticut’s state FMLA into law. The first, major thing to remember is that these changes have not yet taken effect. The payroll taxes to fund these changes begin January 1, 2021 (to begin building the fund) and the new protections themselves begin January 1, 2022. So, if you have an issue right now, you will likely have to rely on the unpaid leave we just discussed. However, we also wanted to explain the protections you will gain with this new law, should an issue arise in the future.
Probably the biggest change coming to Connecticut’s FMLA law is that it will require employers to provide paid leave. Where the existing law requires up to 16 weeks unpaid in a 24-month period, coming January 2022 it will require 12 weeks of paid leave in a given 12-month period. In addition to these 12-weeks-in-a-12-month-period, an employee will be allowed to take an additional 2 weeks of leave for an incapacitating serious health condition that occurs during a pregnancy.
The details of the government insurance plan that will pay out these benefits are not yet finalized, though it will be funded through a 0.5% payroll tax, which begins in January 2021. Employees are not guaranteed their full salary under this new law. Instead, they receive weekly payment that is determined by a somewhat-complex calculation, which is based on their pay and tops out at a weekly maximum of sixty-times the minimum wage. Based on current law, the minimum wage will be $13 when these changes take effect in January 2022, making the maximum weekly pay one could receive $780. The minimum wage is set to rise to (i) $14 on July 1, 2022 and (ii) $15 on June 1, 2023, which would increase this maximum weekly benefit to $840 and then $900.
The shift to paid leave is probably the biggest change, but these amendments have also altered who qualifies for Connecticut’s FMLA benefits. As discussed above, our current law only covers employees who have worked for an employer for at least 12 months, and have worked at least 1000 hours in the past 12 months. Effective January 1, 2022, employees will need just 3 months’ employment to qualify, and the state FMLA will no longer have any hours-worked requirement. Similarly, while the law currently only covers employers with at least 75 employees, after January 1, 2022, it applies to employers with even a single employee.
The new system will still be complex and we would still recommend speaking with an attorney if you have questions about your particular situation. In general, however, Connecticut’s FMLA law is set to shift in 2022, providing greater protections to a wider group of people.
What to do if you need FMLA leave
The best and broadest advice we can give is to document everything. Ask your boss—including by email, letter, or otherwise in writing if you can—how to apply for FMLA leave, and then follow-up, providing whatever documentation they may require. Keep careful notes, documenting your doctor’s visits and communications with your employer. The most important thing is caring for yourself (or your family member) in this trying time: that is what FMLA leave is for. However, following the required steps should help keep the process smooth, and maintaining detailed documentation will help ensure your rights are protected if something goes wrong.
In an ideal world, you would apply for FMLA leave for one of the permissible reasons, take your leave, handle the issue, and move on. If, however, you feel something is going wrong, contact a lawyer immediately. A simple communication from a lawyer may be enough to address a small problem with an employer. If something more serious occurs—such as if you are fired or demoted—an attorney is critical, both to advise you of your rights and to ensure they are fully protected. The FMLA permits employees to sue employers who interfere with their FMLA rights or retaliate against employees for using them. Damages may include lost pay, interest, attorney’s fees, and other damages.
If you are an employer, our best advice is to strictly follow the FMLA and be careful about your communications with an employee who is applying for, presently on, or back from FMLA leave. Direct communications to whoever handles employee benefits for your company and try to stay positive and encouraging in your dealings with your employee. It may be frustrating to lose a worker for many weeks, but do not complain about their taking leave. First, as a practical matter, such complaints can be quite damaging: an employer complaining about their employee’s use of the FMLA is classic evidence in a lawsuit that the employer interfered with or retaliated against an employee’s FMLA rights. Moreover, it is ultimately in everyone’s interest that people are able to address the serious medical and family issues to which the FMLA applies.
Hire a Skilled Local Attorney to Help You With Your Family and Medical Leave Claim
If you are experiencing problems related to a claim for FMLA leave, we strongly suggest that you contact a local attorney to represent you. A qualified attorney can protect your interests, answer your questions, talk to your employer and help you get all the benefits you are owed.
If you or your family is unfortunately the victim of this type of issue, we know there are many options out there. We here at Loughlin FitzGerald—a firm with deep Wallingford roots—would be honored if you considered us. Please feel free to call us—Attorney Charles Reed, a Martindale-Hubbell AV-rated personal injury attorney with nearly 30 years of experience, or his colleague Attorney James Ringold, a fellow Wallingford resident—at 203-265-2035 to discuss your case.