The news this week is both positive and negative regarding the COVID-19 virus. The testing numbers on Tuesday in Connecticut were as bad as they’ve been since Spring 2020. If the virus isn’t everywhere, it sure feels that way.

But, on the vaccine front, the news is positive. We are moving this week to starting Phase 1B which may be broader than intiially thought. And more doses are arriving every day.

For employers, there’s work to do.

Employers in some essential workplaces — including schools — will be able to register their employees. Take a look at the website.

For Phase 1a, the state has required a three step process, which is likely to be followed in Phase 1b. These steps are as follows:

Step 1: Fill Out the Employer Coordinator Survey

If you are representing your business or organization as the person enrolling your employees, then you’ll need to complete the Employer Coordinator survey here.

Please be sure that you first have a roster of eligible personnel that qualify for the vaccine.

Step 2: Register with the Vaccine Administration Management System (VAMS)

After you complete the survey in Step 1, you will receive an email from VAMS within 24-48 hours. This email will guide you through registering your business or organization so your employees can access the vaccine.

Step 3: Upload your Roster of Eligible Employees

Once you have registered in Step 2, you can upload your list of eligible employees. This will allow your employees to schedule a vaccination appointment, based on supply.

Also, as the Employer Coordinator, you will be invited to a virtual training which covers the VAMS process and details how your workforce can access the vaccine.”

Expect further details later this week but employers including schools may want to start thinking about who it may designate an employer coordinator.

I’ve previously provided additional guidance on vaccines and in early February we will be producing a full program for employers on how to manage vaccines in the workplace.

There’s a lot going on right now — both in Washington, D.C. and at home. Employers should be vigilant in ensuring the health and safety of your employees.

In my last semester in law school, we had a program where you could serve as a legal fellow in a Congressional office instead of taking classes.  I was all too happy to work a 40 hour week (instead of 12 hours of classes) and get picked for a legal fellowship in the office of Senator Joseph Lieberman – my home state senator.

To this day, it remains one of the greatest privileges of my life.

With my yellow badge at that time, before 9/11, I had some freedom to naviage the complex.  I could walk the tunnels down below between the Capitol and the Senate office buildings, pop my head into a hearing, and yes, even eat the Senate cafeteria.

But late in my semester, after I had been working on a bill for several months, the office engineered a unique event for me.

As I recall it, legal fellows like myself were not allowed on the floor of the Senate with one exception — if a Senator accompanied us, we could sit in one of the couches on the sides. No talking, no disruption.  And when the Senator left, we could stay — but only so long as you didn’t leave and try to come back.

There would be no bathroom breaks.

And so, one day, they arranged to have me get to go on the Senate floor when I bill I had been working on was going to be discussed.  It was a rather lazy afternoon; only a few Senators would wander in from time to time.  I remember Senator Bill Bradley (and former basketball star) was there – he was tall. Senator Paul Simon was there too – with his bow tie.

I knew it was probably going to be a once in a lifetime experience — to be on the floor of the most consequential legislature in the world with the United States Senators making those laws.

I was in heaven.

I think about that day from time to time. A few years back, I took my kids on a tour of the Capitol and we viewed the Senate chamber from above. I pointed to the corner where I sat and noted how the desks there had been there for generations.

And I thought about that day on Wednesday, when Congress was attacked by a mob, incited by our very own President.

The insurrection had no reverence for the place. No understanding of its importance or its fragility. And no care for its history.

Our nation is a nation of laws, laws passed by Congress. The Rule of Law has governed who we are.  It defines our success (and, when it isn’t followed, defines our failures too.)

The Rule of Law allows for disputes of employment discrimination claims to be handled in courts, not “trial by combat” as the President’s lawyer, Rudy Giuliani suggested.

It allows for employers to understand what rules they need to follow if they want to operate — and the rules that employees can expect will be followed when they are working.

And it allows for prosecution of those who have broken the law.

Businesses understand how damaging Wednesday was; as the U.S. Chamber of Commerce noted: “Small businesses, local communities, and our nation pay a steep price when demonstrations turn violent and destructive, so it is critical that these gatherings be peaceful.”

There must be consequences to those who have incited riots, those who have lied to the American people, and those who refuse to follow the Rule of Law.

It’s up to all of us — employers, employees, businesses and citizens — to say enough and demand that the Rule of Law be followed. Lies and conspiracy theories have no place in our workplaces or in civilized society.

But most of all, I hope we can bring back that feeling of reverence that many of us have had when we have visited the halls of Congress.

As President Dwight D. Eisenhower declared on Law Day in 1958: “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

With both Jon Ossoff and Raphael Warnock the likely winners of the U.S. Senate races in Georgia, a result that seemed unlikely just two months ago, Congress is suddenly back to being a major player in the next year or two.

Over the last several years, the amount of legislation coming out of Congress had slowed to a trickle; Majority Leader McConnell used his powers to block bills that might have otherwise passed.

It wasn’t that long ago that pieces of legislation like the ADA Amendments Act passed with overwhelming bi-partisan support. But that just hasn’t happened for many years now.

Instead, we’ve seen the Executive Branch issue new regulations and executive orders (including in the Obama administration) that have seemingly circumvented the legislative process (albeit within some judicially prescribed limits).

That all changes for the next two years with the U.S. Senate now in a 50/50 split (with Vice President-Elect Harris the tie-breaking vote).

I’ll leave it to the national media to break down the details, but for employers in Connecticut and New York, here are a few things to keep an eye out:

  1. The Congressional Review Act gives Congress the power to overturn regulations. Expect Congress to turn back several last-minute regulations issued by various agencies, including the Department of Labor and Department of Justice. Indeed, just last night, the New York Times reported that there was a push to eliminate some “disparate impact” discrimination cases.  A rollback seems likely.  Also likely to be rolled back? A new multi-factor test on indepedent contractors.
  2. A federal judgeship position in Connecticut has been vacant for over a year while a nomination has been pending; expect President-elect Biden to fill that roll and to have the Senate approve of that vacancy.  Will Judge Jongbloed be renominated?
  3. It’s been curious that President-Elect Biden had not yet announced the appointments for the Departments of Labor and Justice; with the nominations now likely to pass the U.S. Senate, who gets appointed to those roles? It’s quite possible we’ll see a more aggressive policy role for these agencies as well.
  4. What items of legislation we will now see? Minimum wage increases? Changes to the independent contractor rules? It’s ALL on the table now.
  5. And it should be noted that Senators Murphy and Blumenthal are likely to be in key leadership positions in the U.S. Senate as well.

In short, it’s been many years since Congress has passed legislation of consequence for employers to be on top of (pandemic-related legislation notwithstanding).  That all has the potential to change now that the U.S. Senate is flipping.

Where are the clusters of COVID-19 coming from?

That was the subject of a state report that was recently reported on by The Hartford Courant.

When a team of Connecticut officials traced 84 coronavirus clusters to their origin points, they found that the vast majority of those clusters stemmed from four places: restaurants, workplaces, homes and child care facilities.

As the Courant was quick to note, the state report has its limitations; it does not include outbreaks at health care facilities or colleges, both of which are traced by the institutions themselves.  Nor does the report include every outbreak.

Still, the report does provide some important data points to consider for strategy.

For employers, the report demonstrates the risks still present in the workplace.  Compliance with the sector rules still must be a priority, despite the fatigue that is no doubt setting in.

Second, travel is still a significant risk factor contributing to the pandemic.  For employees who travel voluntarily, employers should remind them of the travel quarantine rules still in place.  (This is particularly important for employees who live across the border and work in Connecticut!) And employers should minimize any business-related travel.

Third, encourage employees to turn on the anonymous contact tracing app on their phones.  It’s just one more tool in your toolbox.

Fourth, start talking to employees about vaccines. It’s still too early for many to think about mandates, but that time should hopefully come later this winter or early spring. (Hopefully!)

Finally, take a fresh look at the instructions you have set forth for your employees; remind them of the training that is in place and resend out the guidance from time to time.

The pandemic isn’t ending anytime soon. Indeed, January is projected to be among the toughest months we’ve had to endure.

The report demonstrates that workplaces are still at risk for spreading the coronavirus.  Only continued vigilence can help keep that risk low.

Back at the start of 2020, I declined to do my usual prognosticating for the year ahead.

That was probably wise given the events of the year.

Instead, I quoted a post I did ten years earlier:

For employers, there will always been the next case or new law that will need to be tracked and followed, but employers that follow best practices in employment law can worry less about those developments and more about the big picture. The employers that can focus on attracting and keeping the best employees will succeed — no matter what the other developments are during the year.

So, suffice to say that although there are aspects of this that still hold true, it was obviously a bit too idealistic.

How do you attract and keep the best employees when your revenue stream dries up overnight?

I’ve had far too many clients in the hospitality industry who went through the year from hell.

None of them deserved it. But such is life in the pandemic.  The less said about the furloughs, reductions in force, and COVID-19 illnesses the better.

2021 will — eventually, right? — bring vaccines and a new normal may take hold by the fall. But not before this unrelenting wave continues to bring challenges. Already, the new variant (get to know “B.1.1.7”) is causing me to rethink whether we’ll end up having another wave of lockdowns this winter.

While the calendar has switched to 2021, we’ve still got many more months to go of this pandemic.

With the holidays behind us, these next few months require a renewed focus on staying safe and keeping business operational.

In Connecticut, employers should make sure they are complying with the new paid leave provisions.

Recently, Andrea Barton-Reeves (the Chief Executive Officer of the Paid Family and Medical Leave Insurance Authority) provided an important reminder to employers on a LinkedIn post I did. I copy it here for your information.

To employers: if you missed the 12/31/2020 deadline, you can still register. We ask employers to do this as soon as possible. The most important thing is to begin the half-percent withholding. If you miss or fall behind in withholdings, your business may responsible for making up those contributions. Except under very limited circumstances, you may not recoup missed withholdings from employees. We don’t want employers to find themselves in that situation, so even if it takes you a while to register, start withholding now. The first payments are due to the Paid Leave Authority by April 30, 2021.

If your business is contemplating offering a private plan, still withhold until your employee vote is held. If the vote is in favor of the plan, you can use the withholdings to administer the plan, pay benefits or both, but for no other reason. If the vote is not in favor of the private plan, then those withholdings will be remitted to the Paid Leave Authority by April 30. Please visit www.ctpaidleave.org for more information.

My thanks to Ms. Barton-Reeves for the reminder.

And to the rest of you, here’s hoping that 2021 brings some renewed hope and optimism.  It’s going to be a tough stretch but I’m hoping that we may be closer to the end of this pandemic wave than the beginning.

Feel free to reach out to me or any of my colleagues. We’re here to help.

Happy New Year to all.

Over the last week, while many of us were trying to catch up on our stay-cations,  Congress passed and the President signed The Coronavirus Response and Relief Supplemental Applications Act.

It’s a 5,593-page appropriations bill so I’m going to guess that you haven’t read it.

Spoiler Alert: Neither have I.

But thankfully, my colleagues Jarad Lucan and Sarah Westby have looked into the impact of this new legislation on the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”) which was scheduled to expire on December 31, 2020.

You can find their full post here but here are a few sneak peeks:

  • The emergency paid sick leave and expanded FMLA leave provisions as a mandatory requirement for employers still expired on December 31, 2020.
  • But from January 1, 2021 to March 31, 2021 (Q1 2021), those same paid sick and FMLA leave provisions are now voluntary for employers. Employers can still get the payroll tax credit associated with this leave through March 31, 2021.
  • After March 31, 2021, employers can choose to provide paid COVID-19-related leave at their own expense, but cannot claim a payroll tax credit for this leave.

The full text of the appropriations bill is available here. 

For employers, this is just another complication to start the new year.  Employers should continue to review their leave policies and consider whether providing paid leave to employees who have COVID-19 (or must quarantine) is the best practice for them.

Short post today: If you haven’t paid attention yet to the new state Paid Leave law, you’re out of time.

Here are three things to do right now:

  1. Register with the State Authority here. This is essential; all employers need to do this (presumably by January 1 for reasons I’ll explain next.)
  2. Figure out if you’re going to use the state Paid Leave plan or a private plan.
  3. Contact your payroll provider and, effective January 1, 2021, start withholding 1/2 of 1 percent of each employee paycheck for employee contributions.  These collections are due no later than March 31, 2021 to the Paid Leave Authority. More details here.

If you have any questions, be sure to look at the state FAQ for a headstart, and contact your employment law counsel for guidance.

Of all the things to do before year end, this should be a top priority this week.

Back in October, I provided a preliminary assessment of what a COVID-19 vaccine might mean for employers.  But as I noted back then, the EEOC’s guidance was not yet updated.

Now, the EEOC has finally provided an update of sorts for employers.

In doing so, the new guidance makes plain what many of us suspected — the EEOC is not going to raise objections if employers decide to mandate the vaccine for employees (as long as religious and medical exceptions are considered).

My colleagues Peter Murphy, Julie Fay and I did a deeper dive into what this guidance means for employers in a recent Employment Law Letter post available here.

But one question remains unanswered by the EEOC: Should employers mandate vaccines for all employees?

Frankly, that choice is going to be more challenging for some employers than others. For small employers, a COVID-19 illness that spreads in the workplace can have devastating effects for that workplace where every employee is essential to keeping the business running.  Thus, a vaccine mandate may make sense.

But what if the employer has 10,000 employees and allows employees to work from home. Is a vaccine mandate essential from the outset?

Each employer should look at the pros and cons of a mandate and be sure to discuss the ramifications with your insurance provider as well.

And be sure to talk with your employment law counsel (ahem) about developing a policy on vaccines as well.

2021 is right around the corner. Having vaccines to talk about makes the future just a little less scary.

It’s the Most Wonderful Time of the Year. 

It’s the time when I delve into the annual report of case statistics released by the Commission on Human Rights and Opportunities.  It’s a time to look for trends. And yes, I get excited about this report every year.

The most obvious trend? Case filings are down.

Indeed, the report for 2019-2020 contains some surprises, but without further context, it’s difficult to know the exact causes.

The report’s year ended June 30, 2020, so I don’t think I’m going out on a limb when I say that the spring shutdown and the pandemic played a factor, but how much?

For example:

  • Total case filings dropped from 2625 claims in 2018-2019, to 2319 in 2019-20.  Employment claims dropped too, from 2028 to 1922.  But complaints against state agencies actually increased from 186 to 223.  Why?
  • 434 cases were dismissed on Case Assessment Review in the 2019 report versus 385 in 2020.  Combined with the prior statistics, this suggests (generally) that the CHRO took in fewer cases, but also dismissed fewer too. Is such a difference meaningful? Hard again to tell.
  • At first glance, it appeared that the numbers of cases closed by the agencies was exactly the same — 2640.  But a deeper dive into the report reveals an error: The total for 2020 is incorrect. Adding up all the numbers – just 2403 cases were closed.  Thus, the CHRO’s case closures slowed down; that is probably not that surprising given how the pandemic impacted business in Q2 of 2020.
  • Not surprisingly, many protected categories (age, color, sex) showed significant drops in the numbers of employment claims filed.  A few (gender identity, mental disability) showed modest increases.
  • Sexual harassment claims, which peaked last year, have now started to fall significantly.  In 2019, the number was 279; in 2020, it was just 210.  That’s less than the 2018 number of 235 cases as well.  Other case issues (discharge, retaliation, terms & conditions) also saw big drops as well.

The drop in cases could be a blip; after all, in prior recessions, the number of claims has historically increased as people struggle to find work and are more prone to file a claim in tough labor markets.

I said last year that employment discrimination claims had showed no signs of dropping off; that changed a bunch over the twelve months ending June 30, 2020.  The open question now is: How much will the pandemic further change things for 2020 and 2021?

Back in law school, I submitted a letter and resume for a summer internship at a Chicago lawfirm.  (We did this via letters back then. Ask your parents.)

Imagine my surprise when a week or so later I received a letter offering me a position at the law firm. No long interview sessions. And, well, no interviews at all!

But alas, I was quick to realize something was amiss. The letter was addressed to a Daniel J. Schwartz and referenced Northwestern University; I was at Washington University in St. Louis.  I called the firm and they apologized for the mixup.

I did not get a job offer.

Flash forward a year or so, and I started work at firm in Hartford.  I was placed into the employment law department, which I was thrilled with.

However, to my amusement, there was already another attorney with the last name of “Schwartz” in the department.

And the first name “Daniel”.

Was the employment law world really big enough for two of us?

And yet, with that placement, thus was born a decades-long acquaintance with Daniel L. Schwartz.  And while I no longer work with the “other” Dan Schwartz, the confusion that has arisen from that coincidence (as well as the humor) continues to this day.

So much so, that the Connecticut Law Tribune recently did a profile and interview with us regarding the names. The title? “Which Dan Schwartz? Don’t Mistake These Two Connecticut Employment Lawyers for Each Other.”

Which brings me to my tie-in with employment law: When running your background checks or doing even Google searches, you need to be sure you’re getting the “right” candidate. Even names as relatively uncommon as “Daniel Schwartz” can bring up differing results.

In fact, did you know that there’s a Daniel Schwartz who runs Burger King? I am not that person either.

The Fair Credit Reporting Act actually gives candidates the opportunity to correct the record. I talked a lot more about the pre-adverse action letters in a prior post, but the name confusion reveals it’s importance.  You wouldn’t want to reject a candidate named, say, “Michael Burnham” based on something that happened with a different “Michael Burnham“.

Names are easily confused, but perhaps I have my revenge in the end: A Google search “ranks” the attorney Dan Schwartzs. I’ll let you decide whether a higher ranking matters.