About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Wednesday, December 14, 2011

Connecticut's Paid Sick Leave Act (Pt. 3): Of Documentation & Discipline

This week, I've been taking a pretty close look at the new Connecticut Paid Sick Leave Act that is set to impact the hospitality industry in Connecticut starting January 1, 2012.  I've already looked at the inherent ambiguity in the new statute with respect to simply figuring out who is covered and I've taken some time to pick apart the intricacies of the 680-hour threshold for using paid time off.  I wanted to take a few last minutes on this issue to go through a couple of other points that I think could be issues for the amusement and tourism industry in trying to figure out how to comply with this statute.  Namely - how do you avoid abuse of the system?

As I view it, the new Paid Sick Leave law is ripe for abuse in the seasonal employment context.  Why?  Because the sick time accrued is on a "use-it-or-lose-it basis."  While, as I discussed previously, a seasonal employee can carry over their hours worked into the next season, that same employee cannot carry over any sick time that has been accrued.  Moreover, given that, unlike year round employees, seasonal employees know well in advance when their absolute last day of work is going to be, there is an incentive built into the system to encourage seasonal employees to burn sick time.  So what can you do about it?



The answer, unfortunately, is:  not much.  While the new law only permits sick leave to be taken for certain reasons, the recent Department of Labor guidance acknowledges that "the reasons for the need for leave are broad and include not only the service worker's need for leave, but the service worker's children and spouse as well."  In other words, assuming that an employee wanted to take the day off, it wouldn't be that tough to come up with a reason that would qualify.  However, the DoL guidance made absolutely clear that an employer may discipline an employee if the employee uses sick leave for any reason other than one of the broad reasons allowed. So that should solve the problem, right?

Well...not exactly.  See, the statute is set up to make it rather difficult to find out if an employee is using sick time for some impermissible reason.  Specifically, the statute only permits an employer to request medical documentation of an illness if the employee misses three consecutive work days.  Note that this does not say "three consecutive days."  If an employee at your facility gets two days a week off, that employee could call in sick the day before and the day after those two days off, in effect get four days off in a row, but you cannot ask for documentation to explain the absences.  Why?  Because, under that scenario, this is only two consecutive work days off - the employee was not scheduled to work on his days off so those don't count.  So there's loophole number 1:  Your employees can take two sick days whenever they want and, not only do they not have to document it, you as the employer cannot even ask for such documentation.

Loophole number two kicks in when the employee is gone for more than three consecutive work days.  When that happens, the employer can demand documentation - but what happens if the documentation is suspicious?  You know, it came from Dr. Spaceman (pronounced Spa-che-men, as all you 30 Rock fans know) and is written on notebook paper instead of letterhead.  Can you do anything to check on that?  Maybe.  The statute does allow the employer to request "reasonable documentation," so its certainly possible that the note I just described would not be "reasonable."  That is particularly likely if you have a written policy in place ahead of time setting forth reasonable requirements for documentation - like it has to be on letterhead from the Doctor's office.  But, assuming that the documentation meets whatever minimal test of reasonableness that may exist, the guidance is quite specific that

"there is no provision for an employer to seek clarification of the health care provider's note or a second opinion if the employer questions the documentation."  

Simply put:  unless the documentation is objectively unreasonable, you are stuck with what you get.  Even if it comes from Dr. Spaceman.

So there you have it folks.  Good Luck with the new Sick Leave Act!  It's going to be an interesting 2012 in Connecticut.

2 comments:

  1. This post sets up a false premise. With the 680 hours an employee needs to work before being eligible to take accrued sick leave, it is very unlikely that a seasonal employee will qualify until he or she has put in many years of service. Furthermore, the threshold (and the fact that accrued hours DO carry over) could mean less turnover and greater productivity, which would save the seasonal employer money each year. Finally, there's absolutely no evidence nationally or in San Francisco, where a successful paid sick days law has been in place for more than 4 years, that there's been a raft of abuse. One quarter of S.F. workers report not taking any sick time in the prior year, despite earning as many as 5 or 9 days. And the median number of days taken by S.F. workers is 3, which is far fewer than the number of days potentially accrued. My prediction is that, in 2012, 2013 and even 2020, Connecticut workers will not have been harmed -- and, in fact, will have been helped -- by this common-sense law.

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  2. Thanks for your comment. I will agree with you on at least one thing: I think you are right that the carryover provisions for the threshold hours will be an incentive to get seasonal employees to return to their jobs the next year, which is a good thing for a seasonal employer.

    However, I don't necessarily agree on your other points. First, assuming that a seasonal employee works 40 hours per week and no overtime (in CT, overtime is anything over 40 hours), it would take 17 weeks to reach 680 hours. While I agree that, only working 40 hours per week, 680 hours will be tough to reach in a single season, it is not impossible when you factor in: 1) the possibility of overtime when staffing levels drop and 2) those employees that may work full time (or close to it) during the pre- and post-season getting the facility ready to open and closing it down again. Moreover, don't overlook that seasonal amusement parks in Connecticut are open in the spring and fall which cumulatively adds another couple of weeks to the season. As I pointed out in my first post on this issue back in July, its possible, if not probable, that some seasonal employees will hit the 680 hour mark in one season (I always did, but I worked in a state where overtime was not paid for seasonal work, so we worked A LOT more than 40 hours a week), and most returning employees will hit it soon after the season gets going in their second year.

    I also disagree that analogizing the CT paid sick leave act to San Francisco's ordinance is appropriate. San Francisco's version is far better written and more manageable from an employer's perspective. In fact, a lot of the problems that I've pointed out in my previous articles on Connecticut's law are fairly addressed in San Francisco's version. As for the abuse issue, I'm not familiar with the statistics that you cite, but I would ask whether those statistics were specific to seasonal operations. I suspect they were not. My point is not that the CT Paid Sick Leave Act sets up a general incentive for abuse. In fact, I don't think it does for year-round employees because they can carry over 40 hours of leave every year into the new year and bank it for a "rainy day." Moreover, year-round employees are more likely to be working on a "career" rather than just a "summer job" and therefore can be expected to take it more seriously. I wouldn't expect those employees to abuse the system regularly.

    However, there are different incentives for a seasonal employee who knows that there is no way to bank sick time for later and generally is not viewing this as anything more than a "summer job." Once that employee gets close enough to the end of the season to see that a "rainy day" is unlikely to occur, there is an incentive in this law to use sick time because if you don't, its gone. To a lot of high school and college kids (admittedly, not all), there is simply no reason not to take the free money and take it easy for a couple of days knowing that, so long as you don't flaunt it, no negative consequences can come your way.

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