Working Together

We wrote in June about employment-related legislation from the 2023 Regular Session of the Connecticut General Assembly, in the immediate aftermath of the conclusion of the session.  Now That They Are Finished: Developments From the 2023 Session of the Connecticut General Assembly Affecting Employers Having had time to more fully digest the legislation, the following is an updated description of employment-related bills, which have all been signed by the Governor.  

Paid Sick Leave Expansion

PUBLIC ACT 23-101: An Act Concerning The Mental, Physical And Emotional Wellness Of Children. Despite its title, this Act reaches into several sometimes-unrelated realms, including paid sick leave. The Act amends (effective October 1, 2023) the state’s paid sick leave law for private employers by extending eligibility for paid sick leave to a “service worker” who is the parent or guardian of a child who is a victim of family violence or sexual assault (provided, of course, that the service worker is not the perpetrator or alleged perpetrator of the violence or assault).  (“Service worker” is defined with reference to a multitude of occupation codes and titles in the federal Bureau of Labor Statistics’ Standard Occupational Classification system.)  The Act also amends the paid sick leave law by allowing service workers to use paid sick leave for (apparently once a year) a “mental health wellness day,” which is defined as “a day during which a service worker attends to such service worker's emotional and psychological well-being in lieu of attending a regularly scheduled shift.”

Workers’ Compensation

Public Act 23-35: An Act Expanding Workers' Compensation Coverage for Post-Traumatic Stress Injuries for All Employees. This Act expands workers' compensation benefits for post-traumatic stress disorder arising from witnessing certain traumatic events (e.g., certain deaths or maimings) to include all employees as of January 1, 2024; this benefit is currently limited to certain first responders.

Public Act 23-80: An Act Concerning Workers Compensation And Portal-To-Portal Coverage For Telecommunicators. This Act (effective October 1, 2023) expands portal to portal coverage under the Workers’ Compensation Act (currently available for police officers and firefighters) so as to cover telecommunicators.

Public Act No. 23-32: An Act Concerning Plans for The Treatment of Workplace Injuries And Illnesses And Establishing Working Groups To Review Access To Medical Records And Partial Disability Payments Under The Workers' Compensation Act: This Act, which becomes effective as of October 1, 2023, provides that when employers or their insurers establish plans for employee medical care for treatment of workers’ compensation-related injury or illness, they must include an administrative process for employees to seek a determination on the necessity, appropriateness, and payment for health care services in such plans.

The Act also commissions the creation of multiple working groups to study workers’ compensation issues.  The Act requires the establishment of a working group to review laws surrounding medical records.  The aim of the group is to make legislative recommendations to streamline medical record requests between third-party requestors and health care providers, and to allow for the reasonable assessment of fees incurred responding to such requests. The working group must submit its findings to the Judiciary and Public Health Committees of the General Assembly by no later than February 1, 2024.

The Act also commissions a working group to study the amount of partial permanent disability payments made to injured employees. The goal of this working group is to assess whether the current laws provide sufficient protection for injured workers, and whether the laws specifying benefit levels should be revised.  The working group must submit its findings to the Judiciary and Labor and Public Employees Committees of the General Assembly by no later than February 1, 2024.

Anti-Discrimination Laws

Public Act 23-145: An Act Revising The State's Antidiscrimination Statutes. This Act, which took effect on July 1, 2023, amends Connecticut General Statutes Section 46a-58, which makes it a discriminatory practice to deprive someone of “any rights, privileges, or immunities secured or protected by Connecticut or federal laws or constitutions, or to cause such a deprivation,” so as to cover discrimination based upon age. This Act further revises the state’s anti-discrimination statues by changing the definition of “sexual orientation” so as to cover “a person’s identity in relation to the gender or genders to which they are romantically, emotionally, or sexually attracted, including any identity that a person may have previously expressed or is perceived by another person to hold.” While seeming to be a technical or even redundant revision, this Act could be relevant in proceedings before the Connecticut Commission on Human Rights and Opportunities.

Department Of Labor Powers

Public Act 23-162: An Act Concerning Stop Work Orders. This Act, which takes effect on October 1, 2023, expands the authority of the Connecticut Department of Labor to issue stop work orders to include violations of the prevailing wage laws; the bill also increases fines for violations of stop work orders.

Public Act 23-117: An Act Concerning Modification of and Repealing Obsolete Provisions and Statutes Relevant to the Labor Department. As the title suggests, this Act (which took effect upon passage) repeals numerous obsolete provisions and statutes relevant to the Labor Department.

Health Care Coverage And Labor Disputes  

Public Act 23-172: An Act Concerning Employees' Loss Of Health Care Coverage As A Result Of A Labor Dispute: This Act, which takes effect on October 1, 2023, provides for a special enrollment period on Connecticut’s health insurance exchange for individuals whose health care coverage is terminated by an employer as a result of a labor dispute.

State Hiring Process  

Public Act 23-194: An Act Accelerating The State Hiring Process. This Act, which took effect on July 1, 2023, will provide greater discretion to the Department of Administrative Services (“DAS”) in setting the process used by state agencies to make decisions on hiring employees for the state employee classified service,  by: 1) allowing appointing authorities to hire any applicant whom the authority finds is the most qualified and suitable for the position, from either the new candidate list or any candidate list that is in the “same or comparable class” if the appointing authority determines that doing so would maintain operational efficiency and productivity or would comply with a lawful order, with any pre-employment check/requirements to be done during the applicant’s working test period; 2) allowing appointing authorities to begin the screening process as soon as the applicable job opening is posted, and 3) requiring appointing authorities to notify DAS whenever both a position becomes vacant due to a promotion of the previous holder of the position and the appointing authority determines that the position should be filled.

Covenants Not To Compete (Medical Professionals) 

Public Act 23-97: An Act Concerning Health And Wellness For Connecticut Residents. This omnibus bill contains significant provisions governing the use of covenants not to compete in certain medical professions.  Currently, the law restricts the use of such covenants with respect to physicians.  The Act changes the definition of “primary site” (in terms of geographical limitations on such covenants) so as to ban any geographic limitation that extends more than 15 miles from any single office, facility or location where the physician practices, “as mutually agreed by the parties and defined in the covenant.”  The Act further provides that a covenant not to compete that is entered into, amended, extended or renewed on or after October 1, 2023, shall not be enforceable if 1) the physician who is a party to the agreement does not agree to a proposed material change to the compensation terms of such agreement prior to or at the time of its extension or renewal, and 2) the agreement expires and is not renewed by the employer or the employment or contractual relationship is terminated by the employer, unless such employment or contractual relationship is terminated by the employer for cause. This new provision does not apply to a covenant not to compete that is entered into between a physician and a group practice of 35 or fewer physicians the majority ownership of which is comprised of physicians. 

More importantly, the Act places restrictions similar (if not identical) to those applicable to physicians on covenants not to compete for advance practice registered nurses and physician assistants, effective for all such covenants entered into, amended, extended or renewed on or after October 1, 2023. A more detailed discussion of this statute can be found on Pullman & Comley’s Connecticut Health Law blog.

Municipal Retirement System Changes

Public Act 23-182: An Act Concerning Revisions To The Municipal Employees' Retirement System, A Deferred Retirement Option For Participating Members And The Development Of Best Practices For Governance Structures Of Municipal Retirement Plans.  This Act (effective June 27, 2023) makes numerous revisions to Connecticut’s municipal employee retirement system (“CMERS”) and the benefits provided thereunder. Among other things, the Act makes revisions to the multiplier used to determine retirement allowances; specifically, the retirement benefit for those not eligible or receiving social security benefits shall be 1/12^th of two percent of the member’s average annual pay for the three highest paid years of service, multiplied by the number of months of such member’s “aggregate service.”  There are separate provisions for certain members of municipal fire and police departments.

The Act further makes various changes to the cost-of-living adjustments (“COLA”).  This Act provides that members of the retirement system who retire on or after July 1, 2025 must complete a minimum of twelve months of retirement prior to receiving a COLA. Additionally, the minimum adjustment begins to decrease each year in half percentage increments for members who retire between July 1, 2025, and July 1, 2029 (going from 2% to .5%); however, the maximum COLA also increases from 6% to 7.5%; the annual COLA formula takes into account the consumer price index (“CPI”) for urban wage earners and clerical workers (with members receiving 60% of the annual CPI increase up to 6% and 75% of the annual CPI increase over 6%).

The Act allows the State Retirement Commission to create a deferred retirement option plan for CMERS members on or after July 1, 2025.   If created, such an optional plan must be offered to all members. Within 4 years of creation of the plan, the Retirement Commission shall obtain an actuarial report to evaluate the option plan, and whether to continue the plan in light of cost.

Finally, the Act requires municipalities (no later than September 1, 2023) to submit to the  Office of the State Comptroller (in a form and manner prescribed by the Comptroller) the following information: 1) A statement of whether the municipality has formally adopted an investment policy statement and if so, a copy of such statement; 2) summary plan documents for the previous five fiscal years, except that a municipality need not include such documents for a fiscal year for which there were no changes to such plan or documents; 3) the five most recent actuarial valuations; 4) the form and governance structure of the municipal entity, if any, that provides management or oversight of the plan; 5) whether the municipality uses a third-party advisor or administrator to provide management or oversight of the plan; and 6) the estimated fees paid by the municipality in each of the previous five fiscal years for investments under the plan.  The Comptroller, Treasurer, and Secretary of the Office of Policy and Management shall jointly develop best practices for governance structures and management of municipal retirement plans and submit by July 1, 2024 a joint report to the General Assembly’s finance, revenue and bonding committee.

Prevailing Wage Rates (For Residential Construction) 

Public Act 23-175:  An Act Amending Codification Of Prevailing Wage Contract Rates.  This Act, which took effect on July 1, 2023, provides that with respect to residential construction projects covered by the state’s prevailing wage statutes, the Commissioner of Labor must use the rates set in the collective bargaining agreements covering the same work in the same trade or occupation in the town where the project is being done; when there are two or much applicable agreements, the Commissioner is to use the agreement “of historical jurisdiction” (whatever that term might mean).  If there is no such applicable collective bargaining agreement in the town at issue, the Commissioner is to use the applicable prevailing wage rate set by the U.S. Department of Labor.  These new requirements already exist for highway and building projects.   

Employment of Minors

Public Act No. 23-183: An Act Concerning the Employment Of Certain Minors As Youth Camp Staff Members And Lifeguards: This Act, which took effect on June 28, 2023, updates existing law to allow minors who are at least fifteen years of age to work as staff members at a youth camp, or as lifeguards, under the supervision of a person who is at least 18 years of age.  Minors employed by municipalities under these circumstances need not provide a certificate stating that the minor is at least 15 years old.  The Act also requires the Labor Commissioner to create a pilot program at an amusement establishment in the state to employ minors who are at least 15 years of age to work in nonhazardous positions, such as cashier in a ticket booth or food concession stand.  Unlike municipalities, the amusement establishment under this program is required to obtain a certificate stating that the minor is at least fifteen years old. The Labor Commissioner must submit findings from the pilot program to the Commerce and Labor Committees of the General Assembly by February 1, 2024.

Freedom Of Information Act (and Penalties For Violations)

Public Act 23-200: An Act Concerning Enforcement Of Violations Of The Freedom Of Information Act. This Act, which takes effect on October 1, 2023, increases from $1,000 to $5,000 the maximum civil penalty that the Freedom of Information Commission (“FOIC”) may impose for violations of the Freedom of Information Act (“FOIA”) where the FOIC finds that the denial of FOIA rights was without reasonable grounds. In addition, the bill authorizes the FOIC to issue such fines where the FOIC finds that a public agency is engaging in 1) “a practice or pattern of conduct that constitutes an obstruction of any right” conferred by FOIA, or 2) “reckless, willful, or wanton misconduct” in delaying or denying responses to public records requests. In such circumstances, the FOIC is also empowered to order such other relief as the FOIC determines is appropriate to rectify such obstruction or misconduct and to deter the public agency from violating the FOIA; if a public agency fails or refuses to comply with any such order, the FOIC may apply to the Superior Court for an order requiring such public agency to comply with the FOIC’s order.  It goes without saying that this Act should be of great interest to public employers.  

Freedom Of Information Act (and State Whistleblowers)

Public Act 23-197: An Act Implementing The Recommendations Of The Auditors Of Public Accounts.  Among other things, this Act expands the FOIA’s exemption for records of any investigations and the names of any employees who provide information under state whistleblower and false claims acts to add that the complaint and the name of any person providing such information may also be exempt from public disclosure.  This provision takes effect on October 1, 2023.

And, Finally, Some “Studies”

Special Act 23-19: An Act Concerning A Study Of Pathways To State Employment.  This Act, which took effect upon passage, requires the Commissioner of Administrative Services to conduct a study regarding the hiring practices of state agencies for positions in state service. Such study shall include, but need not be limited to: 1) the feasibility of eliminating requirements for college degrees for certain appointments to state classified services; and 2) the feasibility of establishing a program to provide applicants with alternative routes to appointment to state classified service. The Commissioner is to submit a report with the findings of such study by January 1, 2024 to the General Assembly’s Labor and Public Employees Committee.

Special Act 23-3: An Act Concerning The Labor Department And Data Breaches. This Act requires the Commissioner of Labor to conduct a study regarding data breaches and false unemployment claims suffered by the Connecticut Department of Labor. The Commissioner is to submit a report with the findings of such study by January 1, 2024 to the General Assembly’s Labor and Public Employees Committee.

Special Act 23-6: An Act Concerning A Study Of State Marshals' Health Benefits.  This Act requires the State Marshal Commission to conduct a study of state marshals' health benefits. The Commission is to submit a report with the results of such study (including recommendations for legislation) to the General Assembly’s Labor and Public Employees Committee by January 1, 2024.

Please contact any of Pullman & Comley's Labor and Employment Law attorneys should you have any questions.