Now They Are Finally Finished: Developments from the 2021 Regular and Special Sessions of The Connecticut General Assembly Affecting Employers (Updated July 22, 2021)

Pullman & Comley - Labor, Employment and Employee Benefits Law

The 2021 Regular Session of the Connecticut General Assembly concluded on June 9, 2021, and this office provided a summary of relevant employment related legislation. Subsequently, a “Special Session” took place and concluded on June 17, 2021. The following summary of employment-related bills has been updated and supplemented in light of the Special Session and the passage of time.

BREASTFEEDING IN THE WORKPLACE

PUBLIC ACT 21-27 (“An Act Concerning Breastfeeding in the Workplace”), which takes effect on October 1, 2021, amends current laws regarding lactation rooms in the workplace to require (provided there is no undue hardship) that such lactation rooms 1) be free from intrusion and shielded from the public while the employee expresses milk, 2) include or be situated near a refrigerator (or an “employee-provided portable cold storage device”) where the employee can store expressed breast milk, and 3) include access to an electrical outlet.

HAIR-BASED RACIAL DISCRIMINATION

PUBLIC ACT 21-2 (“An Act Creating A Respectful and Open World For Natural Hair”) (the “CROWN Act”), which took effect upon passage (March 4, 2021), amends the Connecticut Fair Employment Practices Act to prohibit discrimination on the basis of ethnic traits “historically associated with race,” including but not limited to “hair textures” and “protective hairstyles.” Such “protective hairstyles” are defined as including, but not limited to “wigs, headwraps and hairstyles such as individual braids, cornrows, locs, twists, Bantu knots, afros and afro puffs.”

AGE-BASED INQUIRIES ON JOB APPLICATIONS

PUBLIC ACT 21-69 (“An Act Deterring Age Discrimination In Employment Applications”), which takes effect on October 1, 2021, amends the Connecticut Fair Employment Practices Act to make it a discriminatory employment practice for an employer to request or require a prospective employee's age, date of birth, dates of attendance at or date of graduation from an educational institution on an initial employment application. The Act contains an exception for situations when 1) an employer is requesting or requiring such information “based on a bona fide occupational qualification or need,” or 2) such information is required to comply with any provision of state or federal law.

PREVAILING WAGE AND CONTRACTORS

PUBLIC ACT 21-154 (“An Act Codifying Prevailing Wage Contract Rates”), which takes effect on October 1, 2021, codifies as the “prevailing wage rates” for covered construction contracts those rates established in collective bargaining agreements or understandings between employers and labor organizations for the same work in the same trade or occupation in the town in which the project is being constructed. If there is more than one applicable collective bargaining agreement, the rate will be based upon the agreement “of historical jurisdiction.”

SALARY RANGES FOR VACANCIES

PUBLIC ACT 21-30 (“An Act Concerning the Disclosure of Salary Range for a Vacant Position”), which was signed by the Governor and takes effect on October 1, 2021, will require employers to disclose to job applicants the salary ranges for vacant positions upon request or by the time an offer of compensation is made. This Act also requires employers to provide wage ranges to employees upon a position change. Furthermore, this Act revises the state’s gender-based equal pay act by requiring employers to provide employees, regardless of sex, with “comparable” pay for “comparable” work (instead of the current “equal” pay for “equal” work).

LAYOFFS, RECALLS, AND SENIORITY RULES

PUBLIC ACT 21-189 (“An Act Requiring Employers to Recall Certain Laid-Off Workers in Order of Seniority”), which took effect upon passage (July 13, 2021), requires hotels, lodging houses, food service contractors, and building service enterprises with at least 15 employees to notify employees laid off between March 10, 2020 and May 1, 2022 (whether due to a lack of business, a reduction or furlough of the employer’s workforce, the COVID-19 related State of Emergency declared by the Governor on March 10, 2020, or other economic, non-disciplinary reasons) about available positions for which a laid-off employee is qualified. Such notice must be provided within five days of a position becoming available. An employee would be deemed to be qualified if the employee: 1) held the same or a similar position at the time of the most recent separation from active service with the employer; or 2) is qualified for the position or can be qualified for the position with the same training that would be provided to a new employee hired for the position. The employer shall offer the position in the order of preference set by 1) and 2) above; where more than one employee is entitled to preference for a position, the employer shall offer the position to the employee with the greatest length of service at the employment site. An offer of employment to a laid-off employee shall be in the same classification or job title at substantially the same employment site, and with substantially the same duties, compensation, benefits and working conditions as applied to the laid-off employee immediately prior to March 10, 2020. A laid-off employee who is rehired shall be permitted to work for not less than thirty work days, unless there is just cause for their termination.

If the laid-off employee declines an employer’s offer job due to age or an underlying health condition related to having contracted COVID-19 before May 1, 2021, the laid-off employee has the right to accept an available position until the end of the COVID-19-related state of emergency (currently scheduled to end on September 30, 2021). If an employer hires someone else instead of a laid-off employee, the Act requires the employer to give the laid-off employee a written notice that identifies the reasons for the decision. The Act prohibits employers from retaliating against laid-off employees for exercising their rights under the Act, and it allows a laid-off employee aggrieved by a violation of the Act’s provisions to bring a civil action in Superior Court. In addition, the Act provides that within 30 days after any layoff occurring before May 1, 2022, an employee must submit an affidavit to the Department of Labor stating the reasons for its decision.

The Act provides that its provisions may be waived in a collective bargaining agreement (if the waiver is in clear and unambiguous terms). The Act further provides that it should not be construed to invalidate or limit the provisions of any contract or agreement that provides equal or greater protection for laid-off employees; also, it would not be a violation for an employer to follow an order of preference for recall required by a collective bargaining agreement that is different from the order of preference required by this Act.

WORKERS’ COMPENSATION AND PTSD/PTSI

PUBLIC ACT 21-107 (“An Act Expanding Workers’ Compensation Benefits for Certain Mental or Emotional Impairments Suffered by Health Care Providers in Connection With Covid-19”), which took effect upon passage (June 30, 2021), expands workers’ compensation benefits for post-traumatic stress injuries resulting from witnessing in the line of duty certain traumatic events (e.g., certain deaths or maiming) so as to include EMS personnel, Department of Correction employees, and “telecommunicators.” This Act also provides such benefits to health care providers involved in responding to COVID-19, or who witness death or “traumatic physical injuries” linked to COVID-19.

PUBLIC SECTOR UNIONS

PUBLIC ACT 21-25 (“An Act Concerning Access to Certain Public Employees by the Exclusive Bargaining Representative of a Public Employer Bargaining Unit”), which takes effect on October, 1, 2021, requires (among other things) that public sector employers provide their unions (or other representative employee organizations) with certain specified employee information in an editable digital format and in a format otherwise agreeable to the unions. This requirement applies both to new hires and (beginning January 1, 2022) to current employees. The employer will have to provide such a listing of current employee every 120 days.

This Act requires such employers to provide unions with access to new employee orientations. Upon request of either party, employers may have to bargain the structure, time and manner of access to such orientations. In the absence of agreement, either party could then demand compulsory arbitration. This Act requires employers to provide unions with access to employees (even during the workday) and to government buildings/facilities to conduct meetings with bargaining unit members. The Act also gives unions access to the employers’ e-mail systems to communicate with the employees they represent.

With respect to payroll deductions for dues paid to public employee unions, the Act requires: 1) public employers to rely on a union’s certification that it has and will maintain the deduction authorizations signed by the individuals from whose pay the deductions will be made; 2) unions to indemnify public employers for any employee claims about deductions that relied on that certification; and 3) public employers to direct employee requests to cancel or change their deductions to the union rather than the employer. The Act explicitly prohibits public employers from (and makes it a “prohibited labor practice” for such employers to) deterring or discouraging public employees or job applicants from becoming or remaining members of a public employee union. Indeed, the Act prohibits an employer from allowing any entity to use the employer’s email system to discourage either membership in a public employee organization or authorization of payroll deductions for the organization’s dues.

PREVAILING WAGE AND RENEWABLE ENERGY PROJECTS

PUBLIC ACT 21-43 (“An Act Concerning a Just Transition to Climate-Protective Energy Production and Community Investment”), which took effect upon passage (June 14, 2021), among other things, requires the developers of covered renewable energy projects (other than either those selected in competitive bid processes or are under contract with another entity and approved by the relevant regulatory authority, all of these taking place before January 1, 2022) to meet prevailing wage standards if the project begins construction on or after July 1, 2021 and has a total nameplate capacity rating of at least 2 MW. In addition, projects that have a nameplate capacity of 5 MW or more must also enter into a community benefits agreement for the community in which the project is located.

UNEMPLOYMENT COMPENSATION

PUBLIC ACT 21-5 (“An Act Concerning the Removal of COVID-19 Related Layoffs from the Unemployment Compensation Experience Account”), which takes effect on October 1, 2021, provides that to the extent allowed by federal law “and as necessary to respond to the spread of COVID-19,” for any taxable year commencing on or after January 1, 2022, the experience period shall be calculated without regard to benefit charges and taxable wages for the experience years ending June 30, 2020, and June 30, 2021.

PUBLIC ACT 21-98 (“An Act Concerning The Executive Director of the Labor Department’s Employment Security Division and Increasing the Compensation for State Board Of Mediation And Arbitration Members”), which took effect upon passage (June 28, 2021), specifies that the Executive Director of the Department’s Employment Security Division shall be in the classified service and devoted full-time to the duties of his or her office. In addition, this Act increases the compensation for State Board of Mediation and Arbitration members to 1) $325/day for each day beyond the first day of hearing, and 2) $200/day for each executive panel session.

TECHNICAL AND MINOR CHANGES

PUBLIC ACT 21-18 (“An Act Concerning Minor and Technical Changes to the Workers’ Compensation Act”), which takes effect on October 1, 2021, has a title that largely speaks for itself. However, the Act changes the title of “workers compensation commissioners” to “administrative law judges.”

SPECIAL ACT 21-8 (“An Act Concerning a Disparity Study”), which took effect upon passage (June 14, 2021), requires the Commission on Human Rights and Opportunities (“CHRO”), in consultation with the Department of Administrative Services (“DAS”), to issue a request for proposals for the conducting of a “disparity study.” The study shall provide an analysis of existing statistical data concerning the state’s set-aside program, to determine whether its current form achieves the goal of facilitating the participation in state contracts of small contractors and minority business enterprises.

SPECIAL ACT 21-35 (“An Act Establishing a Task Force to Study Cancer Relief Benefits for Firefighters”) establishes a task force to study cancer relief benefits for firefighters. Such study shall include, but need not be limited to, an examination of 1) the adequacy of the current firefighters’ cancer relief program and 2) the feasibility and implications of providing workers’ compensation and other benefits, including death benefits, to firefighters who are diagnosed with cancer acquired as a result of occupational exposure to noxious fumes or poisonous gases. The task force is to submit its report with its findings and recommendations to the General Assembly’s Labor and Public Employees Committee by January 1, 2022.

CRIMINAL RECORDS (AND EFFECT UPON EMPLOYERS)

PUBLIC ACT 21-32 (“An Act Concerning the Board of Pardons and Paroles, Erasure of Criminal Records for Certain Misdemeanor and Felony Offenses, Prohibiting Discrimination Based on Erased Criminal History Record Information and Concerning the Recommendations of the Connecticut Sentencing Commission with Respect to Misdemeanor Sentences”). Among other things, this Act amends the Connecticut Fair Employment Practices Act so as to make it a discriminatory act to deny employment or treat differently an employee solely on the basis of the person’s erased criminal record information. The Act’s various non-discrimination provisions do not take effect until January 1, 2023.

CANNABIS

PUBLIC ACT 21-1 (June Special Session) (“An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis”). The so-called cannabis legalization bill contains several employment-related provisions, which generally take effect July 1, 2022. The Act provides that employers shall not be required to make accommodations for employees or be required to allow employees to: 1) Perform duties while under influence of cannabis, or 2) possess, use or otherwise consume cannabis while performing duties or on the employer’s premises, except possession of palliative cannabis by a qualifying patient. The Act mandates that employer policies prohibiting possession, use or consumption of cannabis by employees be in writing and made available to employees prior to enactment. Employers may then take action against employees (whether for on- or off-duty conduct) only if pursuant to such policies. The Act limits an employer’s ability to refuse to hire an applicant for off-duty cannabis use occurring prior to hire to situations where it would put the employer in violation of a federal contract or jeopardize federal funding not to take action. The Act expressly does not apply to any position or condition of employment governed by federal law or regulation that clearly preempts any of the Act’s provisions and other exempted positions (e.g., specified transportation, health care, and public safety positions, along with educational services and positions requiring supervision and care of children). In addition, the Act provides that all employers must ban smoking (tobacco or otherwise) anywhere in the workplace and within 25 feet of a doorway, window or air intake vent.

While employers maintain the same “right” to have a drug free workplace and conduct drug searches/tests as prior to the passage of this new law, the Act places limitations on the ability of employers to use a positive test as basis for discipline. Specifically, a drug test of a prospective or existing non-exempted employee that is positive only for a specified metabolite of THC cannot be the only basis for a refusal to employ or continue to employ or to otherwise penalize the prospective or existing employee, unless: 1) failing to do so would put the employer in violation of a federal contract or cause it to lose federal funding; 2) the employer reasonably suspects an employee has used cannabis while performing work responsibilities; 3) the employee shows specific, articulable symptoms of drug impairment while working that decrease or lessen the employee’s work performance; or 4) the drug test is under a random drug testing policy established by the employer, or was for a prospective employee with a conditional job offer, and the employer has established in the policy that a positive drug test for the specified metabolite of THC may result in an adverse employment action.

AND, OF COURSE, THE BUDGET IMPLEMENTER

PUBLIC ACT 21-1 (JUNE SPECIAL SESSION) (“An Act Concerning Provisions Related to Revenue and Other Items to Implement the State Budget for the Biennium Ending June 30, 2023). The 790-page budget implementer bill that was passed during the special session contained numerous employment related provisions (some of which are not actually related to the budget), including the following:

  • TIME OFF TO VOTE: The Act requires employers (until June 30, 2024) to give employees two hours of unpaid time off on the day of a regular state election and specified special elections so that they can vote if they so request. The employee must provide two working days’ notice and the request for time off must be for time occurring during both the employee’s workday and the hours the polls are open for covered elections.
  • CONNECTICUT’S FAMILY AND MEDICAL LEAVE ACT AND PAID FAMILY MEDICAL LEAVE PROGRAM: Among other things, the Act:

Requires the Paid Family and Medical Leave Insurance Authority (commencing with 2022-23 fiscal year) to begin repaying funds from bond authorizations allocated to it under a plan established by OPM;

Permits, rather than requires, the Commissioner of Labor to conduct a hearing for persons aggrieved by a denial of paid family and medical leave benefits or the imposition of certain anti-fraud penalties; in lieu of a hearing, the Commissioner could decide the matter based upon the documentary record;

Eliminates a provision that explicitly excluded the State from being an employer covered by Connecticut’s FMLA;

Requires complaints of FMLA violations to go through an additional investigatory step (similar to the “case assessment review” process for CHRO claims) before proceeding to a hearing. The Act also explicitly subjects such complaints to a 180-day statute of limitations.

  • ESSENTIAL WORKERS COVID-19 ASSISTANCE PROGRAM: This Act establishes the Connecticut Essential Workers COVID-19 Assistance Program to provide benefits for lost wages, out-of-pocket medical expenses, and burial expenses to certain “essential employees” (as originally identified under Phases 1a and1b of the COVID-19 vaccine program) who could not work due to contracting COVID-19 or symptoms later diagnosed as COVID-19. Benefits are available within available funds and on a first-come, first-served basis, and will only be paid through June 30, 2024. The Act specifically covers those essential workers who: 1) died or could not work due to contracting COVID-19, or symptoms that were later diagnosed as COVID-19 between March 10, 2020 and July 20, 2021; 2) contracted COVID-19 that was confirmed by a positive lab test or (if one was not available) diagnosed based on the employee’s symptoms and documented by a licensed physician, physician assistant, or advanced practice registered nurse; 3) provide a copy of the test or diagnosis documentation to the program’s administrator; and 4) did not, during the 14 consecutive days immediately before the employee’s death or inability to work, a) work solely from home, with no physical interaction with other employees, or b) receive an individualized written offer or directive to work solely from home, but otherwise chose to work at the employer’s worksite. Excluded from the Act are those federal employees who qualify for benefits under the COVID-19 workers’ compensation presumption included in the American Rescue Plan of 2021.

In order to apply for benefits under the program, an affected person with a pending workers’ compensation claim related to COVID-19 (or an affected person who does not have such pending workers’ compensation claim), shall submit a claim to the program administrator not later than July 20, 2022. In addition, an affected person who does not have a pending workers’ compensation claim related to COVID-19 shall submit a claim to the administrator not later than one year after the date such person was initially unable to work as a result of contracting COVID-19 or due to symptoms that were later diagnosed as COVID-19 or July 20, 2022, whichever is later.

The benefits offered to an affected person under this program (subject to available funds) are payable on a retroactive basis from the date such person was initially unable to work as a result of contracting COVID-19 or due to symptoms that were later diagnosed as COVID-19 between March 10, 2020 and July 20, 2021. Specifically, the benefits shall be as follows: 1) Weekly assistance for all uncompensated leave, calculated as 75% of such affected person’s average weekly earnings, after such earnings have been reduced by any deduction for federal or state taxes, Federal Insurance Contributions Act, and unemployment compensation benefits and temporary total or temporary partial disability workers’ compensation benefits for the same days of such claimed assistance, 2) all documented out-of-pocket COVID-19 related costs for medical and surgical aid or hospital and nursing service incurred directly as a result of the affected person contracting COVID-19, and 3) burial expenses in the amount of $3,000 in cases in which an employee died due to contracting COVID-19 during the period of any public health and civil preparedness emergencies declared by the Governor as a result of a COVID-19 outbreak in this state. Payments under this program would be an offset against any payments made under a workers’ compensation claim.

  • PROHIBITION AGAINST EMPLOYEE DISCIPLINE AND MISINFORMATION FOR WORKERS’ COMPENSATION CLAIMS: The Act revises the workers’ compensation non-discrimination and non-retaliation statute so as to prohibit employers from deliberately misinforming or dissuading employees from filing claims for workers’ compensation benefits or under the new Connecticut Essential Workers COVID-19 Assistance Program.
  • WORKERS’ COMPENSATION BURIAL EXPENSES: The Act increases the worker’s compensation benefit for burial expenses from $4,000 to $12,000, with the benefit then subject to future annual indexing for inflation.
  • NON-UNION STATE EMPLOYEES: The Act requires (rather than permits) the Commissioner of DAS to give unclassified or non-union state employees in the executive and judicial branches the same rights and benefits provided by state employee collective bargaining agreements.
  • CALL CENTERS: The Act limits the ability of call centers to relocate to another country by requiring them to notify the Commissioner of Labor at least 100 days prior to such relocation (and subjecting them to fines for violations). Any call center employer that relocates to another country would be ineligible for any state grants, loans, tax benefits or other state financial support for a period of five years. Furthermore, such an employer would also have to remit the unamortized value of any such state financial support it has received in the previous five years; however, this requirement could be waived if employer demonstrates that it would: 1) threaten state or national security, 2) result in substantial job loss in this state, or 3) harm the environment. In addition, the Act contains a general requirement that the State may only contract with in-state call centers.
  • DOMESTIC WORKERS: The Act requires each employer employing a domestic worker to advise the worker in writing, at the time of hiring, of: 1) the rate of remuneration, hours of employment and wage payment schedules; 2) his/her job duties and responsibilities; 3) the availability of sick leave, days of rest, vacation, personal days and holidays (including whether such days are paid or unpaid, and the rate at which such days accrue); 4) whether the individual or employer may charge any fees or costs for board and lodging, and, if so, the amount of such fees or costs, and 5) how to file complaint of violations of these provisions. This Act also requires the Commissioner of Labor to establish a domestic workers education and training grants program to provide grants to qualified organizations to provide: 1) education and training for domestic workers and employers addressing minimum wage, overtime, sick leave, record-keeping, wage adjudication, retaliation, and the requirements of employers to advise employees of their terms of employment/working conditions (i.e., wages, hours, leave); 2) one or more online resources for domestic workers and employers on state laws and regulations relating to domestic workers; and 3) technical and legal assistance to domestic workers and employers through legal service providers.
  • UNEMPLOYMENT COMPENSATION: The Act requires the Commissioner of Labor to establish the Office of the Unemployed Workers’ Advocate within the Department of Labor to assist unemployed persons. The Act also requires employers subject to unemployment laws to report certain data about each employee (including data related to membership in a protected class) in their quarterly wage reports; the Act generally exempts employers’ and employees’ personally identifying information from disclosure under the Freedom of Information Act.
  • TASK FORCES AND STUDIES: The Act requires CHRO to oversee a study of equity in state government programs and actions with respect to race, national origin, ethnicity, religion, income, geography, sex, gender identity, sexual orientation, and disability. DAS (in consultation with CHRO and OPM) must hire a consultant to conduct the study; the Act specifies the study’s required components (including study of inequities revealed by or worsened during the pandemic) and requires submission of a report to the General Assembly’s Government Administration and Elections Committee by February 15, 2023. The Act also establishes a task force to study the state workforce and retiring employees that would study, among other things, the number of managerial and exempt employees that are eligible to retire, succession planning of executive branch agencies in preparation for retirements, and barriers to recruitment into the managerial and exempt workforce. The task force is required to issue a report to the legislature by January 1, 2022.

[View source.]

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