This year produced a number of new laws and regulations requiring changes to employer policies. These include changes related to sick leave, discrimination and harassment, and pregnancy and lactation policies. As the new year approaches, consider whether your company handbook needs revising to include the following:
Connecticut Paid Sick Day Law
Employers with 25 or more employees will be subject to Connecticut’s expanded Sick Day Law starting January 1, 2025, as will
manufacturers and YMCAs.
Employers who were covered under the previous version of the law, that is, employers with 50 or more employees, will need to update their policies to conform to the changes. Companies with fewer than 50 employees, manufacturers, and YMCAs will now need to include Sick Day Law policies in their handbooks. Company handbooks should be updated by January 1st to include the following changes to the law:
The class of employees covered under the law has expanded beyond “service workers” to include all employees-including exempts;
The rate at which leave accrues has accelerated;
The eligibility period to use leave has shortened to 120 days; The reasons for which leave may be taken has expanded;
The class of people for whom employees may take sick leave has expanded;
The definition of “seasonal employee” has been significantly changed;
Employers can no longer require an employee to give advanced notice of the need for leave; and
Employers can no longer require documentation if leave lasts more than 3 days.
Employers will also want to consider whether to incorporate the Sick Day Law into their existing PTO policies or track sick leave separately. The law allows employers to provide a bank of 40 hours of PTO in lieu of tracking sick time accrual as long as the bank of PTO complies with the Sick Day Law’s requirements
Keep in mind that if you provide leave benefits on a schedule other than calendar year, such as on a fiscal year or anniversary date, the first year of the Sick Day Law will present some issues. The CT DOL’s position is that employers will need to track the accrual of employee sick time until the date on which the employee receives their bank of leave.
That is, if an employer’s benefit year begins in July, from January 1, 2025 to July 1, 2025, the employer will need to track the employee’s accrual of sick time until the employer provides the leave bank on July 1, 2025.
Pregnant Workers Fairness Act
The EEOC’s Pregnant Workers Fairness Act regulations took effect June 18, 2024. The final rules cover accommodation requirements, the undue hardship standard, documentation, and prohibited practices, among other topics.
The EEOC has provided several examples of what it considers to be reasonable accommodations, including specific accommodations deemed to be de facto reasonable.
References in your handbook to the interactive process (discussions between the employer and employee about accommodations) or the requesting of accommodations should be reviewed to ensure that they include the PWFA.
Updated EEOC Guidance on Discrimination
Employers should also consider reviewing harassment policies in light of the U.S. Equal Employment Opportunity Commission’s (EEOC) updated discrimination guidance issued in April of 2024. The guidance clarifies what might constitute discrimination on the basis of age, sex, race, color, ethnicity, gender identity, and religion. It also addresses the emergence of new issues such as online harassment.
Among the provisions in the guidance that may require handbook revisions are:
Sexual Harassment and Pregnancy-Related Decisions
The guidance expanded the definition of sexual harassment to include harassment on the basis of pregnancy, childbirth, and related medical conditions. The revised definition encompasses protections against discrimination related to lactation, contraceptive choices, and decisions regarding abortion. Employers must align their policies with these expanded protections and ensure compliance with accommodation requirements.
Recognition of Virtual Harassment
The guidance underscores that harassment can occur virtually. Conduct communicated through email, instant messaging, or video conferencing platforms may constitute harassment. Social media posts from employee accounts made outside of the workplace can also constitute harassment under Title VII if the posts have a job- related impact. Employers should consider addressing discriminatory speech in virtual environments and update policies accordingly.
Expanded Protections for LGBTQ+ Workers
The guidance clarifies that harassment of LGBTQ+ employees, including transgender individuals, constitutes a violation of Title VII. This interpretation stems from the Supreme Court’s 2020 decision in Bostock v. Clayton County, affirming sexual orientation and gender identity discrimination as forms of sex discrimination. Examples of harassment under the guidance include intentional misgendering, such as not using an individual’s preferred pronouns, denial of access to gender-appropriate facilities, such as not allowing a transgender worker to use the restroom that aligns with their gender identity, and harassment based on non-conforming gender presentation.
Recommendations
Employers should review their current handbook and policies for legal compliance and schedule regular reviews to ensure policies remain legally compliant. When making updates, it is important both to document the change and maintain copies of prior versions in case of future litigation. Additionally, consider adding a complaint procedure to your non-discrimination policy as you probably have in your policy against sexual harassment.
Employers should also evaluate whether additional non-policy-related changes to current practices are needed. For example, Connecticut will require employers covered by the new Sick Day Law to provide individual notices to employees explaining their rights by January 1, 2025. It also requires employers to display a poster in English and Spanish notifying employees of their rights under the law. The notices are available on our website under robertnoonan.com/forms.
CT Department of Labor Issues Guidance on Connecticut Sick Day Law
The Connecticut Department of Labor recently released new guidance in the form of 196 Questions and Answers on the expanded Connecticut Sick Day Law. For those who attended our firm’s Sick Day Law webinar in October, many of these questions will look familiar. The Department of Labor has now made them available to the general public here.
Captive Audience Meetings Ruled Unlawful by NLRB
Attempts to unionize workplaces has proliferated over the last several years. A recent decision from the National Labor Relations Board recently made it harder for companies to dissuade workers from unionizing.
Over 70 years ago, the NLRB found employers may hold “captive audience meetings.” Captive audience meetings are mandatory meetings held during work hours where employers inform employees of the company’s stance on unionization. As long as employees were not threatened, punished, or promised some benefit in exchange for attendance, these mandatory meetings were permissible under the National Labor Relations Act.
On November 14, 2024, in Amazon.com Services LLC, the NLRB overturned its longstanding precedent, ruling that employers are prohibited from requiring employees to attend meetings where the employer expresses its views on unionization. This prohibition applies regardless of whether the employer’s message is for or against unionization.
While an employer can no longer require employees to attend a meeting where the employer expresses its views on unionization, the ruling does provide a limited safe harbor for voluntary
meetings. Under the “safe harbor,” an employer may lawfully hold meetings with workers to express its views on unionization if, reasonably in advance of the meeting, it informs employees that:
The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
The employer will not keep records of which employees attend, fail to attend, or leave the meeting.
Public Comment Period for OSHA Heat Rule Extended
OSHA is extending the public comment period for its proposed Heat Rule until January 14, 2025. Should the rule take effect, employers will be required to monitor the temperature for indoor and outdoor workers and take certain precautions when a heat index trigger is met.
A heat index of 80°F is the initial heat trigger. At or above the initial heat trigger, an employer would be required to:
ensure workers have readily accessible, cool drinking water (at least 1 quart per hour);
allow paid rest breaks if needed;
at outdoor work sites, provide one or more readily accessible break areas with shade OR air-conditioning if in an enclosed space, like a trailer, vehicle, or structure;
at indoor work sites, provide one or more readily accessible break areas with air-conditioning OR increased air movement and, if appropriate, de-humidification;
implement an acclimatization plan for the first week of work for new and returning employees; and
communicate regularly with employees.
At or above the high heat trigger, when there is a heat index of 90°F, an employer would also be required to:
provide paid rest breaks – a minimum of 15 minutes every two hours (a meal break – whether paid or unpaid – may also serve as a rest break);
set up an observation system to check employees for the signs and symptoms of heat-related illnesses;
maintain effective two-way communication with employees who are alone at a work site at least every 2 hours; and
provide a heat hazard alert to employees on the importance of drinking water, taking rest breaks, and following lifesaving emergency procedures.
The rule would also require employers to train employees on heat hazards. OSHA will hold an informal public hearing on the proposed rule on August 30, 2024.
With the upcoming administration change, it is very likely that many of the federal agency enforcement directives and regulations, including those from OSHA, will receive review, and will likely be rolled back. We will provide employers with updates on this rule as they develop.
A Year End Q and A
Finally, here is a common question and the answer that comes at this time of the year:
Question: Our company gives a year-end bonus; our bonus plan says that an employee must be here on the day the bonus is paid, or it’s forfeited. Is this ok?
Answer: It depends on whether your bonus is “discretionary,” or it guarantees payment if your employee meets the bonus targets, i.e., it is “non-discretionary.” Our Supreme Court ruled that discretionary bonuses are not wages while non-discretionary bonuses are wages. The Court also ruled that a discretionary bonus may have targets, like company profitability, and remain discretionary.
Non-discretionary bonuses and commissions that have been earned are considered wages and must be paid to employees, even if they leave the company.
If the employee has met the performance targets in the bonus period, the employee would be entitled to be paid even if the employee left.
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