Without any fanfare, the Connecticut Department of Labor has recently updated their separation packets, that include the so-called “Pink Slips”.

Employers must start using this packet immediately on a going-forward basis.

Previously, there was a category of “layoff” but the new form has eliminated that checkbox, and replaced it with “leave of absence”.  This is a welcome change because the “layoff” and “lack of work” always seemed a bit duplicative.

There are also still categories for “lack of work” “voluntarily leaving” and “discharge/separation”, along with the catch-all “other” but the “leave of absence” stands out in this pandemic.

Employers that are using furloughs should check off the “leave of absence” box.

A furlough is, after all, basically a forced unpaid leave of absence by the employer. The employee is eligible for unemployment benefits and the DOL form now makes this clear.  (Note, employees on furlough will also not be eligible for paid leave benefits under the FFCRA as the recent DOL guidance notes.)

You can download the packet here, and just the form here.

Before I talk about some developments, I wanted to share a story about David Lat – the founder of the Above The Law blog. He remains hospitalized in serious condition according to a report, still fighting COVID-19 and battling for his life.  (Saturday Update: He’s out of ICU!) He’s just 44 years old with a 2 year old son.

I had one of my first encounters with the Above the Law blog way back in December 2007.  It was, frankly, exciting that my little employment law blog that I had just started a few months prior — got a shoutout.  My traffic spiked and I felt strangely validated.  I had other cites too over the years – and David couldn’t be more kind about it.

Since that time, our paths have crossed multiple times. Five years ago, I had the opportunity to do a panel discussion with David on technology and the law. And he was as kind in person as you would hope. He had taken a train from NY to attend and shared his stories.  It was a blast.

I’ve spoken with many of you over the last week and everyone has been impacted.  But I wanted to share this personal story among many to highlight just how devastating this pandemic is.  There will, unfortunately, be many more stories like this.

So as we wrap up another long week, here are some thoughts:

  • My colleagues and I have done a deeper dive into the second batch of guidance from the U.S. Department of Labor that I touched on this morning. You can find the full guidance from us here.
  • Employers need to still print out the notice from the DOL on the FFCRA by April 1, 2020. You can download the notice here; it should go up where we have the other ones.
  • On Tuesday, March 31, my colleagues and I will be putting on a special video webinar on COVID-19. Rather than recap every law, we are going to spend most of our time, talking about the practical issues that keep arising and answering questions that people have.  I hope you can join us.  It’s free and will take place at noon. 
  • The CARES Act passed this afternoon.  To be perfectly candid, I’ve been so busy that I haven’t done a deep dive into all the employment law provisions yet, but I’ve already seen one good recap; I’m sure there will be others over the weekend.
  • And finally, for something different, one of my favorite musicals — Dear Evan Hansen — reposted this video of a community singing “You Will Be Found” from various people in their houses.  As we are all abiding by the Stay at Home orders, it seemed particularly apt.  I know from the dozens of calls I’ve had over the last few weeks how many of you are struggling, both to manage the crisis at work and keep your family safe at home. If you or your business are struggling, just reach out.

Even when the dark comes crashing through
When you need a friend to carry you
And when you’re broken on the ground
You will be found.

The flood of information being produced by the government on the pandemic continues.

Last night, the U.S. Department of Labor published a second round of guidance that is designed to help employers manage Paid Sick Leave and paid FMLA leave (EPSL and FMLA+).  (H/T FMLA Insights for the summary.)

This is different than the initial guidance that came out earlier this week because it answers some important questions that had been left unresolved.

Here’s some of the items to know about:

  • Just like FMLA, employees can be required to submit documentation to support the need for leave.
  • Employees must generally take the leave in full-day increments.
  • The DOL has clarified that intermittent leave can be taken for child care reasons but only with the employer consent.
  • Importantly, resolving an issue that I discussed on this blog before, an employee is not eligible for paid leave during a furlough or temporary layoff.
  • Employees are also not allowed to “top off” their paid leave payments by using accrued paid time off, unless their employers agree.

The guidance also talks a lot about the interplay between telework and the FFCRA, including when an employee who is teleworking can still be eligible for the leave.

Suffice to say, there’s more to this than a brief recap can capture, but employers who are in the midst of implementing this, should review the entire guidance here.

From time to time, I have a conversation on this blog (titled “The Dialogue”) with Nina Pirrotti, a prominent labor & employment attorney representing employees in the New Haven area.

With all of us now working from home for the foreseeable future, Nina and I thought we’d bring back this recurring feature — with a pandemic twist. We did the conversation via video conference!

Because if there’s a winner from this loser of a year so far, it’s the widescale adoption of the video conference.  Never mind that my home office is doubling as our “bunker” with extra supplies (Pop Tarts anyone?).  It’s just good to connect.

In this segment, we talk about what our respective clients have been going through and where we see this crisis in a few months.

My thanks, as always, to Nina for the conversation.  Attorneys representing management and employees can sometimes disagree but we don’t have to be disagreeable with each other.  And judging from the collegiality on the CBA’s message boards, I know there are many others that feel the same as well.

 

As I was saying about some days… Wednesday merits TWO posts.

  • Earlier today, the U.S. Department of Labor released it’s poster that employers must use starting April 1, 2020.
    You can download the poster here.
    Employers can also review new poster guidance today that states such tidbits as “No, you cannot put federal notices in a binder.”  (Really, a binder?)
    In any event, put the notice up where you keep your other posters and you’ll be fine; it’s not that complicated.
    And note: There’s a typo in it! Hopefully they’ll release a new one today.
  • Also earlier today, my firm released a new client alert on the updated statutory guidance released by the USDOL on the leave provisions.  You can review that here.
  • What else? Also on Wednesday, the chief administrative judge for the Connecticut State Courts indicated that all scheduling agreements and case management orders in Superior Court are suspended until the courts resume normal operations.
    The details of such an order will be forthcoming on the Court’s website, but for employers with matters in state court, discovery deadlines and other such deadlines are now getting delayed indefinitely.
  • Connecticut is seeing a massive influx of unemployment claims, almost matching the entirety of jobs lost during the recession in 2008-2010.  As a result, there is a three week backlog on processing those claims.
  • Congress is still rewriting the stimulus plan as of this evening but buried deep in the draft were some revisions to the EFMLEA and EPSLA.  What will remain in the final version remains to be seen, especially regarding the tax credits.

Last but not least, I have to thank our local restaurants. We recently ordered curbside takeout (Pro tip: pop your trunk for contactless takeout) and it was a great way to break up the same old meals. Be sure to do the same.

To paraphrase a popular quote: There are years when nothing happens and there are days (and weeks) when years happen.

The nonstop barrage of news, orders, and other materials continues making updating a blog on the subject feel hopelessly out of date the moment you click “Publish”.

So rather than any lofty posts this morning, I’m just going to highlight some resources for employers and what I’ve been participating in too.

  • Late Tuesday, the US Department of Labor released guidance on interpreting the new coronavirus (COVID-19) leave laws. Key point? The new law goes into effect April 1, 2020 and not April 2 as most of us had assumed.  My firm will be posting a full client alert later this morning at its resource page here.
  • The Connecticut Department of Labor has been updating its FAQ for employers on the pandemic in a document. It was updated on Tuesday with some additional guidance. It’s a must-read for any employer here.
  • This FAQ is also different from the FAQ being updated nearly daily from the State of Connecticut too. That also provides an additional resource to review.
  • Each new day brings about new Executive Orders. The most recent ones have little to do about employers, but two changes are worth noting: a) One order (7K) now allows for “remote notarization” of documents; b) That same order calls for postponement of most workers compensation matters too.  Schools are also officially closed (7L) through April 20, 2020.
  • We’ve been getting questions about the DOL’s Shared Work program. I previously discussed it in a prior post here. It remains a useful option for employers that want to reduce the hours for a group of workers. While it technically has a 30 day waiting period, we’ve heard from the DOL that, after the 7 day comment period from employees, the DOL will process it ASAP; e-mail them for more information.
  • The Shared Work program, it should be noted, differs from partial unemployment, which can also be used for an individual employee whose hours have been reduced from full-time. However, the benefits for partial unemployment are fairly low so be sure to understand the parameters of this program.
  • The EEOC recently updated its website to provide some new guidance on the pandemic as well.  It suggests, for example, that employers can now take the temperatures of employees without violating the ADA, clarifying a previous question.
  • As I noted previously, I’m current sitting on the CBA Task Force to respond to the COVID-19 pandemic. There are many good resources now being made available; the CBA has created a resource page here.
  • Both the federal and state courts in Connecticut yesterday started to pass rule changes that defer nearly all in-person court proceedings indefinitely and delay certain deadlines as well.  If you have a case in the court system, odds are that a delay is going to be built in.  Check with your attorney about the particulars for any case.
  • Yesterday, Interlaw, Ltd., of which my firm is a member of, held an international video webinar featuring employment law attorneys from South Korea, China, Norway, UK, Germany and the United States discussing the impact of the pandemic on employers worldwide. I moderating the discussing and it was terrific to hear everyone’s perspectives.  You can watch here. 
  • On Monday, I was able to join WNPR’s Where We Live to talk about the impact of the pandemic on Connecticut employers. You can find that discussion here as well.
  • The Hartford Court published a Q&A with employee-side attorneys about the obligations that employers have and the rights that workers have as well.  Key quote from plaintiff’s attorney Gregg Adler? He foresees a “ton of litigation about all of this on an individual and collective basis over time.” I think he’s right; employer beware.
  • And finally, my friend Jeff Nowak, who runs the terrific FMLA Insights blog that I’ve highlighted before, produced a very informative program on the new leave laws yesterday. You can find the materials here. I highly recommend it.  

Late Sunday evening, a new Executive Order and new DECD guidance were both released clarifying the “Stay at Home. Stay Safe” rule that goes into effect Monday at 8 p.m.

Executive Order 7J amends the Friday order in two important ways:

  1. It permits non-essential retailers to be staffed on site, provided that they may only offer remote ordering (e.g. phone, internet, mail, dropbox) and delivery or curb-side pick-up,
  2. It permits non-essential businesses and nonprofits to allow staff or third patties on site to the minimum extent necessary to provide security, maintenance, and receipt of mail and packages, or other services deemed essential in implementing guidance issued by the Department of Economic and Community Development.

This answers some questions we received over the weekend regarding mail and security services. IT services also now appear to fall within this as explained in the next guidance.

Also Sunday night, DECD released its guidance on what businesses are deemed “essential” as well as services deemed essential.  It’s a big list so I’m not going to recap it here tonight but if you thought your business might qualify, you should re-look at the list because there are some definite changes.

It’s important to note that all manufacturing and the supply chains that go along with it, including aerospace are exempted. Moreover, companies are asked NOT to submit something if it is apparant that they fit within an exempt category.  Thus, good faith compliance seems to be carrying the day.

The guidance also clarifies that employees of Essential Businesses whose duties are not critical to an Essential Business function should still telecommute or utilize any work from home procedures available to them.

The guidance also clarifies that any business that only has a single occupant/employee (e.g. attendant) is deemed exempt.  This will help a lot of solo offices who were waiting for additional guidance on this issue.

My firm will have more tomorrow as we continue to analyze this.  Be sure to check out the Shipman & Goodwin Coronavirus Resource page here.

Also over the weekend, Treasury, IRS and Labor announced a plan to implement Coronavirus-related paid leave for workers and tax credits for businesses.  My firm will have guidance on this tomorrow but in the meantime, I recommend Jon Hyman’s post from this weekend. 

Finally, I want to highlight three programs that might be of interest to you:

  • On Monday morning, I will be appearing on WNPR’s Where We Live to talk about the employment law implications that keep arising out of the pandemic. (It’ll be rebroadcast as a podcast too.) I’ve been on this gem of a show before but we’re going to do it this time via Zoom.
  • On Tuesday morning, I’ll be moderating and presenting a free webinar with Interlaw on how global employers are addressing the pandemic with speakers from Europe and China to talk about what we in the United States can expect as well.
  • And finally, for your listening pleasure, several employment lawyers and HR professionals teamed up for a special episode of the “Hostile Work Environment” podcast.  I was able to join the conversation and it’s great fun amid a tough time. You can find it on all podcast channels and also on YouTube here. 

It looks like another busy week ahead for everyone.  Remember: Stay at Home. Stay Safe.

 

 

This morning, my firm put out an urgent alert regarding what businesses need to know about Executive Order 7H over the weekend.  My department’s collective guidance is included in that alert so I recommend it highly to you all.

You can find all of our alerts here.

The following is a portion of the alert to non-essential businesses just answer a few questions, but be sure to consult our full guidance and reach out to an attorney to discuss as this is a very fast-moving and uncertain situation.

There are several issues for employers of non-essential businesses to think immediately about:

  • Can the employee work from home? If so, Executive Order 7H expressly permits non-essential employees to continue working from home, regardless of whether they work for an essential or non-essential business. The order addresses in-person work at any company workplace, not at home.
  • Does the employee have an “essential” role so they could continue working? At the time of this Alert, this issue is still not yet clear. We anticipate that there will be some clarification that certain roles at non-essential businesses will be deemed essential — such as payroll — but the initial order did not make that clear. The Department of Economic Community Development is expected to issue guidance this weekend.
  • Do employees have to be paid during the length of this order? If employees are doing telework or other work remotely, then yes. If they are not, they do not.
  • Are employees who are not working eligible for unemployment benefits? Yes. You should provide information to these employees as soon as possible to make it easier for them to apply for unemployment benefits, but direct employees to apply right away for these benefits — they do not need to wait to receive employer packages to apply. Employees who experience a reduction in hours as a result of the Order are also eligible to apply for partial unemployment benefits.
  • If we do not have work for employees, should we lay them off or furlough? This is a business decision, each with pros and cons.
  • If employees are not working as of April 2, 2020, when the new federal legislation goes into effect for EFMLEA and emergency paid sick leave, will they be eligible for benefits? If they have been laid off, they will not be because they will no longer be employed. If they are furloughed, we do not yet think that the order qualifies as a “quarantine or isolation order” under the emergency paid sick leave act that would qualify the employee for such leave. Employers, however, are free to provide such benefits at their choosing. In addition, employees may be entitled to such leave or benefits under other categories in the federal laws. The amount of pay they are to receive may depend on their status, so be sure to check with counsel about compliance as the April 2, 2020 date gets closer.

As we noted, DECD is expected to issue additional guidance on Sunday, so be sure to keep following all the updates for more information on this fast-moving situation.

As always, the materials that Shipman & Goodwin LLP has prepared on the COVID-19 pandemic, which can be found at the above link are for informational purposes only, are not intended as advertising and should not be construed as legal advice. This information is not intended to create, and receipt of it does not create, a lawyer-client relationship. Internet subscribers and on-line readers should not act upon this information without seeking professional counsel. Please do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

The news late Friday was not unexpected. The Governor is shutting down the offices of non-essential businesses including non-profits.

But if I had told you two weeks ago that Connecticut would be issuing an order telling non-essential businesses that their offices would have to close, I’m not sure I would’ve had many believers.

And yet, here we are.

Executive Order 7H has been something I’ve been trying to get employers to prepare for, particularly in a prior post.

Here’s the key text:

  • All businesses and not-for-profit entities in the state shall employ, to the maximum extent possible, any telecommuting or work from home procedures that they can safely employ.
  • Non-essential businesses or not-for-profit entities shall reduce their in-person workforces at any workplace locations by 100% not later than March 23, 2020 at 8:00 p.m.
  • Any essential business or entity providing essential goods, services or functions shall not be subject to these in-person restrictions.

Thus, any office, retail store or non-profit needs to close its in-person locations to all employees.  Employees may still be permitted to telecommute or work from home.  But even those workplaces that only employ one person seem to be covered by this for now.

And what is “essential”? The DECD Commissioner is to release a list by Monday but the Governor as outlined some of the categories:

  • The 16 critical infrastructure sectors as defined by the Department of Homeland Security and available at https://www.cisa.gov/criticalinfrastructure-sectors
  • Essential health care operations including hospitals,
    clinics, dentists, pharmacies, elder care and home health care workers, companies and institutions involved in the research and development, manufacture, distribution, warehousing, and supplying of pharmaceuticals, biotechnology therapies, health care data, consumer health products, medical devices, diagnostics, equipment, services and any other healthcare related
    supplies or services;
  • Essential infrastructure, including utilities, wastewater and drinking water, telecommunications, airports and transportation infrastructure;
  • manufacturing, including food processing, pharmaceuticals, and industries supporting the essential services required to meet national security
    commitments to the federal government and U.S. Military;
  • The defense industrial base, including aerospace, mechanical and software engineers, manufacturing/production workers, aircraft and weapon system mechanics and maintainers;
  • Essential retail, including grocery stores and big-box stores or wholesale clubs, provided they also sell groceries;
  • Pharmacies, gas stations and convenience stores;
  • Food and beverage retailers (including liquor/package
    stores and manufacturer permittees) and restaurants, provided they comply with previous and future executive orders issued during the existing declared public health and civil preparedness emergency;
  • Essential services including trash and recycling collection, hauling, and processing;
  • Mail and shipping services;
  • News media;
  • Legal and accounting services;
  • Banks, insurance companies, check cashing services, and other financial institutions;
  • Providers of basic necessities to economically disadvantaged populations;
  • Construction;
  • Vendors of essential services and goods necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses, including pest control and landscaping services;
  • Vendors that provide essential services or products,
    including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and the provision of goods, services or functions necessary for the health, safety and welfare of the public.

Any other business may be deemed essential after receiving approval from the DECD.  If you believe your business is covered, now is the time to seek such an exemption.

You may want to consult with your legal counsel on this too; my firm has been advising clients the last few days with regarding to orders in other parts of the country already.

There are still plenty of questions; for example, can outdoor maintenance crews who are socially distancing still perform work on non-essential businesses? What about other outdoor work that is not in a workplace?

Note that the order itself focuses on the business and not the individual. Despite the Governor’s request to stay home and stay safe, there is not an order from the governor that individuals must stay home from work; rather, the work is closed to the employee.

Nevertheless, this Order will certainly impact another round of employees who cannot telework and will have to either be laidoff or furloughed.

My colleagues and I are working on providing additional analysis of the Order and its implications.  We hope to put it up on our Firm’s website sometime soon. 

It’s been a long week for all. Stay home and stay safe.

Thursday brought still another busy day of news as increased testing in Connecticut brought a big jump in numbers of confirmed COVID-19 cases. 

We’re starting to hear about employers considering furloughing employees instead of simply laying them off.

(Though the numbers of layoffs in Connecticut is over 54,000 — since Friday.)

In general terms, a furlough that some are considering would involve setting an employee to “zero hours” in schedule and not paying him or her a salary. (There are different types of furloughs, to be fair.) Sort of like an unpaid leave of absence, if you will.

But the employee would still be eligible under some health insurance plans to remain on the company plan with the company and employee still contributing the same amounts as during regular employment.

This option is attractive to some because of concerns that a loss of job might result in a COVID-19 related illness left uncovered by insurance.  It also avoids the “you’re fired” feeling that comes with a layoff and avoids having to then rehire the employee (with paperwork) in a few months.  He or she is still your employee.

This option isn’t perfect and may be limited by the language under the plan itself. But for employers looking for any option might think about that.  There are other options too, such as reducing an employee’s hours or salary. Be sure to talk these options through with your attorney.

In other Thursday developments: