This post was co-authored by Labor + Employment Group lawyers Natale DiNatale, Abby Warren and Christopher A. Costain.

As most employers in the construction industry know, the Connecticut Legislature passed significant amendments to the Connecticut Paid Sick Leave (PSL) law which are set to go into effect on January 1, 2025, for employers with twenty-five or more employees. The amended PSL law includes a few important exceptions for unionized construction companies. Additionally, just in time, the Connecticut Department of Labor (DOL) has published important guidance (Guidance) regarding these wide-ranging changes that employers in the construction industry may find helpful as they revise policies and procedures to ensure compliance with these significant amendments. Highlighted below are some of the most important parts of the amended PSL law and the DOL’s guidance that may impact employers in the construction industry.

1. The Construction-Related Union Exceptions

The amended PSL law covers all employees working in the state of Connecticut with the exception of certain unionized construction workers. Specifically, the exception applies to individuals who are members of organized construction worker unions to the extent that the union is a party to a contract with a multiemployer health plan in which more than one employer contributes to such a plan so long as the plan is maintained pursuant to one or more collective bargaining agreements between the union and the employers.

Similarly, an exception appears in the amended law’s definition of “employer,” which excludes employers that participate in multiemployer health plans in which more than one employer is required to contribute to such plan, and the plan is maintained pursuant to one or more collective bargaining agreements between a construction related union and the employer.

2. Existing and Pre-2012 Collective Bargaining Agreements

The amended PSL law does not diminish any rights provided to employees under an existing collective bargaining agreement, and it does not preempt or override the terms of a collective bargaining agreement entered into prior to January 1, 2012. Therefore, as the Guidance has clarified, any collective bargaining agreement entered into or renegotiated after January 1, 2012 must comply with the terms of the amended PSL law, including by not requiring documentation in support of a paid sick leave-related absence or prior notice of a qualifying absence, among the other key requirements of the amended PSL law discussed in our prior Legal Update.

3. Two Different “120-Day” Rules in the Amended Law

The amended PSL law provides that covered employees are entitled to use accrued paid sick leave on or after one hundred twenty calendar days of employment, meaning they have been “on payroll” for three months. The Guidance clarifies that the 120 calendar days begins on the employee’s hire date, and that employees who meet the 120 day threshold as of January 1, 2025, do not need to wait to use accrued paid sick leave. Similarly, employees who began their employment prior to January 1, 2025, but have not yet worked 120 days must wait until their 120^th day of employment before using accrued paid sick leave.

Also under the amended law, “seasonal employees” (defined as employees who work 120 or fewer days in a year) are not covered by the new law. The important distinction between the new hire waiting period and the seasonal employee workday threshold is that new hires must wait 120 calendar days before using accrued paid sick leave, whereas seasonal employees are not eligible for paid sick leave until they have worked 121 or more days in a year.

The Guidance clarifies that if a seasonal employee remains employed and works 121 or more days in a year, they will become eligible for the use of accrued paid sick leave. Importantly, in such an instance, a former “seasonal” employee would be entitled to use accrued paid sick leave beginning on workday 121 and thereafter, based on the hours worked in their first 120 days.

4. Documentation and Notice Prohibited

Under the amended PSL law, employers are not permitted to require documentation of paid sick leave use from employees.  Instead, employers are permitted to ask employees only if they are taking time off pursuant to the PSL law, but cannot gather specific details or documentation to support the request. The Guidance states that if an employee refuses to provide enough information for an employer to determine that the absence is covered under the PSL law, the employer should not apply the employee’s accrued paid leave to the absence.

The Guidance also clarifies that if an employee uses paid sick leave concurrently with a law that permits return-to-work or fitness-for-duty certifications, such as the federal or state Family and Medical Leave Act or the Americans with Disabilities Act, an employer may request such documentation. However, if such documentation is requested, it may not be used to deny an employee’s use of paid sick leave.

The Guidance also clarifies that as it relates to notice that employees must provide in advance of use of paid sick leave, employers may require employees to provide notice “as soon as practicable” of the need to use paid sick leave, so long as employees are not disciplined for failing to follow the employer’s requirements regarding the timing of the notice.

5. Ensuring Compliance with Existing PTO Policies

With regard to employers in the construction industry that are not exempted from the amended PSL law and who have a paid time off (PTO) policy, the Guidance clarifies that employees who use all of their accrued PTO by taking a family vacation will be deemed to have exhausted their 40 hours of paid sick leave. For future absences in the same year that would have otherwise qualified as a paid sick leave-related absence, the employer would be permitted to require advance notice and documentation, and the other requirements of the PSL law would not need to be satisfied.

However, the DOL cautions that an employee’s absences related to paid sick leave should not be treated as an “occurrence” under the employer’s attendance policy. That being said, employers may have a policy with regard to use of sick time used above and beyond the 40 hours required by law (and presumably, could discipline for various reasons when time is used above the 40 hour threshold).

6. Carrying Over or Paying Out

The amended PSL law provides that employees may carry over up to forty (40) hours of unused accrued paid sick leave per year unless the employer frontloads the time, in which case carry over is not required. The Guidance further clarifies that an employer may also offer to pay out an employee’s unused accrued paid sick leave in lieu of carrying over to the following year, but only if an employer and employee agree. Employers that do not frontload paid sick leave may want to consider offering employees a payout option in order to better manage workforce and staffing levels at the beginning of the following year, before paid sick leave accruals grow.

There is likely to be additional forthcoming guidance from the DOL as the amended PSL law goes into effect beginning in January. In addition to carefully reviewing the amended PSL law and the DOL’s guidance, employers should consult competent employment counsel.