Don’t You Forget About Me! Mandatory Paid Sick Leave and Expiring Collective Bargaining Agreements

by Pullman & Comley - Labor, Employment and Employee Benefits Law
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As you may recall, in 2011, Connecticut become the first state in the nation to enact mandatory paid sick leave legislation.  This mandatory paid sick leave law, which became effective January 1, 2012, required most public-sector employers with more than 50 employees – such as school boards and municipalities — and most non-manufacturing, private-sector employers with 50 or more employees to provide certain hourly “service workers” with a minimum of 40 hours paid sick leave coverage.

Now, almost two years having passed since the paid sick leave law’s effective date, you may think that the initial work for employers in terms of implementing it would be over and done with.  Not so fast.

The paid sick leave act (now codified at Connecticut General Statutes §§31-57r to 31-57w) contains an exemption that states that nothing in the law “shall be construed to…preempt or override the terms of any collective bargaining agreement, effective prior to January 1, 2012.”  Conn. Gen. Stat. §31-57u(a).  Simply put, those service workers that were already covered under a collective bargaining agreement, or “CBA,” on January 1, 2012 were denied the benefit of the Act’s mandatory sick leave requirements until such time as they became subject to a new, successor agreement.   For instance, a group of unionized cafeteria workers covered by the terms of a CBA that took effect on July 1, 2010 and that expired June 30, 2013 would not be entitled to paid sick leave benefits, under the Act until a new, successor collective bargaining agreement kicked in.

Surprise, surprise, collective bargaining agreements entered into prior to January 1, 2012 are slowly but surely giving way to successor CBAs that, unlike their predecessors, are no longer exempt from the mandatory sick leave Act.  Consequently, if you are a Connecticut employer with more than 50 employees and employ covered “service workers” (a list of service worker job titles, as defined by the federal Bureau of Labor Statistics Standard Occupational classification system is available at  http://www.cga.ct.gov/2011/SUM/2011SUM00052-R02SB-00913-SUM.htm ) then you need to start thinking about how your circa-2009, circa-2010 and circa-2011 CBA’s might need to be amended in order to ensure compliance with Connecticut’s mandatory paid sick leave law.

Affected employers should also be prepared to address questions that arise out of the Act.  For example, do service workers covered by the new CBA accrue sick-leave at a minimum rate of one hour per forty hours worked?  Are covered service workers eligible to use sick leave (or an alternative source of leave such as PTO [“paid time off”], personal, or vacation) for the illness or injury of immediate family members or in connection with a family violence or sexual assault incident?  How does the CBA address sick leave carry over?

One last point: what happens if your organization already entered into a post-January 1, 2012 successor collective bargaining agreement and that agreement does not include contract language affording covered service workers with the minimum benefits they are entitled to under the mandatory paid sick leave law?  Well, first and foremost, don’t panic.  Employers are not going to be carted off to jail if they absent-mindedly entered into a CBA that runs afoul of the mandatory sick leave law.  The simple answer is that provisions in a CBA that are countervailing to law are unenforceable.  To this end, the provisions of an agreement that do not afford covered service workers with the sick leave rights to which they are entitled should be disregarded to the extent that they are inconsistent with the mandatory sick leave law.

With this being said, employers should still take care in ensuring that the CBAs they enter into with employee bargaining units are consistent with the law, for language that proves to be contrary to law and thus unenforceable fosters confusion and may serve to undermine employers in future rounds at the bargaining table.  Collective bargaining agreements should instead clearly define all terms and conditions of employment, including potential entitlement to paid sick leave.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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