If you recall way back in March, Governor Ned Lamont declared a civil preparedness and public health emergency which granted his office broad powers.  Those powers have been seen with various Executive Orders that have followed.

That declaration was set to expire today, September 9th.

However, a few days ago, the Governor issued a new declaration renewing the existing public health emergency and civil preparedness emergency to February 9, 2021.

Now, in further response, the Governor yesterday issued new Executive Order 9A which reissues and extends all prior Executive Orders to November 9, 2020 if they were to expire on September 9th or expire within six months of issuance.

Executive Order 9A keeps any specific deadline that was in the order itself such as the eviction moratorium.

For employers, the practical effect of this will be that the Sector Rules for essential businesses, and Phase I and II reopenings, will likely remain in place through at least November 9th.

Indeed, it seems as this point that the state is taking a wait-and-see approach for the next few months.  Schools are back in session and, while the COVID-19 numbers remain in check, there has been a slight increase in recent weeks (even as the positivity rate has stayed below 1 percent).

Governor Lamont indicated yesterday that it’s not yet time to move to Phase 3 – meaning bars will remain closed and indoor restaurant capacity will remain limited.  Lamont went on to add that he remains very concerned that November will be a “period of risk” as colder weather means more people may seek refuge indoors.

The return to school has also caused a number of headaches for both employers and employees.  My colleagues have prepared a new blog post on the impact that the hybrid instructional model is having on the application of various paid leave rules.

There’s just a few weeks to go (absent an extension) for employers to get their employees trained on sexual harassment prevention.  October 1, 2020 will be here before you know it.

I’ve talked about it in prior posts so there should be no surprise.

And yet, with the pandemic, it’s easy to see how this has been overlooked.

What are the solutions for employers?

The CHRO does offer a free online training.  Reviews of the training have been mixed but as I’ve told many people — you get what you pay for.

Other alternatives include seeking out law firms and HR consultants for training modules.  Often at a significant cost.

At my firm, we’ve listened to clients and I think developed a model that can work for everyone.

On September 10, 2020, I will be presenting a live two hour online training session with my colleague Keegan Drenosky.  It will be appropriate for both supervisors and non-supervisors alike and will meet all the statutory requirements under Connecticut law. It will allow for questions and polls and, having given the presentation dozens of times before, it should be fairly fast-paced.  The program will run from 12 noon to 2 p.m.  You can register here. 

The cost? Just $20 per person — or basically the price of a nice lunch.  You can easily pay via PayPal.  The small fee allows us to cover our administrative costs; we believe good training should be available and affordable to all.  In addition, we view this as an important client service (though it is open to all).

Of course, there will be plenty of you that can’t make the session live.

And that’s where things get really good. We’ll be recording the session so it can be viewed later at any time.  Again, the cost will just be $20 and you can sign up for the program here.  That online recorded program will also meet Connecticut’s requirements.

Group discounts above 50 employees are also available.  Just write to events@goodwin.com for details.

If you’re going to be unable to meet the deadline, an extension of time can be sought from the CHRO.  But there’s no time like the present. I hope you can join us next week.

You may recall that President Trump issued a memorandum earlier in August 2020 directing the Treasury Secretary to defer the withholding, despite and payment of the employee portion of social security tax for certain employees.

On Friday, the Secretary released a new notice on that point; however, as my colleagues explain in a new post on Employment Law Letter, the notice fails to conclusively answer many important legal and practical questions.

The biggest takeaway for employers is that businesses are not compelled to implement the deferral contemplated by the notice.

But employers should also be in touch with their payroll service provider, and ultimately both their employment law and tax attorneys with respect to implementing the deferral.  There may be significant administrative complexities and headaches to worry about.

For more on the subject, read my colleagues’ full FAQ on the blog here. 

It’s easy during this pandemic to forget about the other laws that are coming into play this year and next.  Paid FMLA is going to be big.

But for now, employer have another one to consider: the minimum wage increase.

Last year, the General Assembly passed (and the Governor signed) a significant increase to the minimum wage that raised it to $11 per hour.

Now, effective September 1, 2020, it goes up again — another dollar increase to $12 per hour.

(The next increase will take place August 1, 2020 to $13 per hour.)

For some employers, the change couldn’t come at a worse time, but for employees who have been suffering through this pandemic — sometimes with only part-time work available — the increase will make a difference to some.

What’s notable is that the Labor Commissioner is empowered to recommend that minimum wage increases be suspended after two consecutive quarters of negative growth to the state’s GDP.

In the first quarter of 2020, the state did suffer its first negative growth of GDP – down 4.9 percent. And nationally, the GDP is estimated to have decreased by over 30 (!) percent. There is little doubt that Connecticut will mirror the national trend.

But as of now, those numbers haven’t yet been released, potentially taking the Labor Commissioner off the hook.

Of course, the Governor could still issue an Executive Order staying the increase, but there’s no indication that will happen.

So come Tuesday, employers need to be prepared to increase the minimum wage paid to employees to $12 per hour.

I’m excited. And nervous. And happy. And angry. And energized. And exhausted.

And my oldest daughter hasn’t even started her first day of college next week.

(Proud Dad aside: She’s headed to WPI next week as a freshman where she wants to study aerospace engineering!)

Around Connecticut, the nervousness and excitement has been palpable and has been the talk of most of the calls I’ve fielded the last few weeks.  All pandemic. All the time.

Private schools working earnestly to keep kids safe and making sure their teachers and staff are safe too.

Workplaces wondering if it’s time to bring back just a few more people to the workplace.

Other workplaces addressing requests to continue to work from home.  Or whether the rules are changing. And when.  The amount of questions keeps multiplying each day.

A lot of the questions that are coming up now are difficult ones without easy, off-the-cuff answers. Here’s an example:

Employee X is a teacher in the “high risk” category at an independent school and would like to work from home. What options does the school have? What analysis plays in?

There are several statutes in play. The ADA, for one; does the employee have a disability as defined by the ADA? If so, does the employee’s disability interfere with the employee’s ability to perform the essential functions of the job? And if so, is there a reasonable accommodation that can be granted that isn’t an undue hardship and doesn’t place the employee at a direct threat to him/herself or others? What accommodations should be considered? Remote work? PPE and classroom spacing?

What if the “high risk” category is just over 65? Does the ADEA play any role? And what about the FMLA?  Does the employee have a serious health condition that prevents the employee from wearing a mask or even working? Can the employer ask for a second opinion to a note that seems to be questionable?

And what about the child care issues that arise or employees with kids that are only going to school in a hybrid fashion? Can the teacher take paid sick leave or FMLA+? If so, can he or she do so on an intermittent fashion? What does that look like for a school?  Is that feasible?

Then there’s the Executive Orders and the guidance from the state Department of Education. 

And so on.

And that’s just for one type of position. What about staff? What about other workplaces? How are employers going to manage employees who can work some days but need to work from home on others because of a hybrid model implemented by schools? How does this analysis continue to play out with Sector Rules of Offices that still say that employees who can work from home still should work from home?

That’s not to say that this isn’t workable.  My colleagues and I have been having basically non-stop chats and messages about this issue or that issue.   We’re still working through them all.

But at the end of the day, the questions become simpler. Crisper.  Individualized.  What do YOU want to do? What is YOUR risk tolerance? What precautions are being taken at the workplace and school? Is it enough for you?

For our family, the decision to send our daughter to college hasn’t been an easy one.  We know that she is getting tested before she arrives, and then several times a week when she’s at the campus too. They are wearing masks, de-densifying dorms and classes, using outdoor spaces and more.  We’ve purchased PPE for my daughter to wear beyond just the cloth face coverings. Enough hand sanitizer and cleaning supplies that she’ll likely never use.

She’s ready to go. We think we are too.

And yet, we’re left with the one unanswerable question: Is it enough?

Way back in April, the state first instituted a mandatory mask and face covering rule under Executive Order 7BB. 

On Friday, the state updated it in Executive Order 7NNN by requiring medical documentation in order to be exempt. Here’s all that you need to know on the changes.

The new rule states: “Effective immediately, any person in a public place in Connecticut, whether indoors or outdoors, who does not maintain a safe social distance of approximately six feet from every other person shall cover their mouth and nose with a mask or cloth face-covering. In addition, individuals shall use a mask or cloth face covering when using the services of any taxi, car, livery, ride-sharing or similar service, or any means of mass public transit, or while within any semi-enclosed transit stop or waiting area.”

What’s changed? The basic mask rule remains the same. Go to any public place where you end up being within six feet of someone else and you need to cover your mouth and nose. The previous rule said those who were “unable to” maintain a safe distance also needed to wear a mask, but that language was removed, presumably for the sake of clarity.

The new rule states: “Nothing in this order shall require the use of a mask or cloth face covering by anyone for whom doing so would be contrary to his or her health or safety because of a medical condition, a child in a child care setting, or anyone under the age of 2 years. Any person who declines to wear a mask or face covering because of a medical condition shall be exempt from this order and any requirement to wear masks in Sector Rules or other rules issued by the Commissioner of the Department of Economic and Community Development (DECD), but only if such person provides written documentation that the person is qualified for the exemption from a licensed medical provider, the Department of Developmental Services or other state agency that provides or supports services for people with emotional, intellectual or physical disabilities, or a person authorized by any such agency. Such documentation need not name or describe the condition that qualifies the person for the exemption.”

What’s changed? The medical exemption language has changed in several respects. First, it eliminated the exemption for an “older child” if the parent was unable to place the mask safely on the child.  So all kids over 2 are now required to wear a mask (except in a child care setting).  Second, medical documentation is now required in order for a person to claim an exemption from the mandatory mask rule. Presumably, the documentation must be carried at all times in a public place as well.

The new rule also states that the DECD must issue new updated sector rules to reflect these changes.

Thus, you will find the new “documentation” rule reflected on the new sector rules. For example, for essential employers, the rule now states that “Employees that cannot wear a mask due to a medical condition must provide documentation to their employer”.

For other businesses, the guidance has been updated with the same language and also language to make it clear that “businesses have a right to refuse service to an individual who is not wearing a mask.”  Offices have similar rule changes. 

The new Executive Order will help employers manage the face covering rule in the workplace a little bit easier and more closely tracks the ADA’s language where an employer can ask for documentation of a disability and accommodation that may not be obvious.

Businesses should remain mindful that the ADA’s public accommodations statute may have obligations on the business to find alternatives to delivery of the services or availability of products.  Be sure to talk with your counsel before implementing any changes.

Employers should update the training provided to employees and their policies regarding masks and face coverings to address this new language ASAP.

The state rolled out a new website for the Commission on Human Rights and Opportunities during this pandemic. As someone who navigated the old site for years, I’m not yet a fan.

One reason? It’s hard to find news and some helpful items are buried.

For example, the CHRO now automatically lists the “Most Popular” pages up top — but that list is meaningless. For example, one of the pages contains outdated training materials from a 2011 law on case processing.  Another page links just to the Office of Policy and Management. 

Why am I bringing this up during the pandemic? Well, we are less than 60 days from October 1, 2020 deadline for employers to complete sexual harassment prevention training for employees.

But it’s not exactly easy to find on the CHRO website.  The training landing page doesn’t specify the deadline either — or that an extension of time is available.

Instead, on Monday, the CHRO put up a quick update on its Facebook page that noted that it was actually still allowing extensions of time for the next few weeks.

Here’s the update:

Pursuant to Executive Order 7DDD, employers needing a 90-day extension of the October 1st Sexual Harassment Prevention Training deadline must request one from the Commission by September 9, 2020 for reasons relating specifically to the Covid-19 pandemic. Requests received after that date may not be granted. Requests can be submitted to CHRO.Questions@ct.gov.

To be fair, the CHRO website itself has two other pages on the training requirements.  One has this updated information but another one on the CHRO website doesn’t.  Ugh.

To the CHRO’s credit, it does appear that some lobbying took place to try to get the statute clarified during the special session (according to minutes of the July 8, 2020 CHRO Meeting) but with limited bills being brought up, employers are stuck with what we have now.

For employers, time is ticking on completing the training or asking for an extension of time.

And for the CHRO – is tweaking the website in the cards? Asking for a friend.

Conneticut’s Travel Advisory Quarantine has been among the most confusing of the orders to arise from the pandemic.  No doubt that it was not intended to be that complicated.

But the last few weeks have had change after change made to the rules.  And then came the announcement last week that Rhode Island was on the list and suddenly, all the questions seemed that much more urgent.

Rather than go through all the various permutations, I thought I’d summarize where we are today for Connecticut residents and employers, knowing that the rules are likely to change still further (not to mention the list of states).   Thankfully, the state has put up a FAQ that, while not the same as the Executive Order itself, does try to clarify some of the questions.

What States Are On the Quarantine List? The list on August 4, 2020 (which should be updated again on August 11) keeps changing but you can find the 30+ states here. Of the states in the Northeast, Rhode Island, Maryland and Virginia are the ones that stand out.

(NOTE: On August 11, Rhode Island was removed back off the list.)

What’s a Worker to Do? Employees from Connecticut who travel to one of the impacted states must self-quarantine for 14 days upon arrival back.

What Happens When A State Is Added To the List When an Employee Is Visiting (and That State Wasn’t On the List Previously)? The state has said that it will not pursue civil penalties or fines on Connecticut residents who travel to a state that gets added to the list while the resident is there.  But, “all such travelers are still strongly encouraged to make every effort to self-quarantine” upon return.  For employers, this is a conundrum but as a result, many employers are still encouraging such residents to work from home (or self-quarantine) if possible.

How Long Does a Worker Need to Be in Another State to be Subject to the Self-Quarantine? The new guidance says that a Connecticut resident must be in an affected state for more than 24 hours in order to then self-quarantine. Similarly, if an employee lives in Rhode Island and is only going to be in Connecticut less than 24 hours, then the quarantine does not apply.  Therefore, Connecticut residents who commute to Rhode Island daily are exempt.  And, Rhode Island residents who work in Connecticut on a daily basis are also exempt.

Can Employees Be Tested Instead of Self-Quarantining? The new guidance from the state suggests no.  Testing is only available for a person who is “unable to self-quarantine”.  According to the state, the term “unable to self-quarantine” applies in “very rare circumstances (e.g., coming to Connecticut for a funeral, an end-of-life visit to a relative).”  And for good measure, the guidance says that “Returning to work is not a justification for being unable to self-quarantine. Individuals who plan voluntary travel to affected states should have arrangements with their employers to be self-quarantined for the two weeks after they return.”  Moreover, “there is no option to avoid the self-quarantine requirement through getting a COVID-19 test after you arrive in CT.”  In other words, the quarantine is fairly strict.

Any Other Guidance for Employers of Rhode Island Residents? Yes. According to the state, Connecticut “employers with employees who are residents of adjacent, affected states should make every effort to provide telework options or otherwise limit employee time in CT.”  And what happens if Rhode Island (or another state) comes off the list? Those people who were already self-quarantining must continue that quarantine for the full 14 days upon arrival.

Are Essential Employees Exempt? Yes, but only for work-related travel. “Any CT resident who qualifies as an essential worker…going to the bordering, affected state for work-related travel is not subject to the self-quarantine requirement.”

What If An Employee Voluntarily Goes to an Affected State? Well, this is one of those questions that remains unanswered by the guidance.  While Connecticut residents are “urged” not to travel to these states, they still must self-quarantine upon return.   Is the employee then eligible for paid sick leave under the FFCRA because of this “quarantine”? On this issue, there seems to be a split of opinion among some, but there’s little doubt that FFCRA-qualifying employees will have an argument to make that they are eligible for paid leave — even if they are the ones volunarily putting themselves in that position. Nonetheless, if employee can work from home upon their return, then they will not be eligible for paid leave.

Finally, don’t miss the “P.S.” buried deep on the page which shows someone at the state still has a sense of humor — “Need great ideas for summer fun within Connecticut? Be sure to check out safe and creative destinations for you and your family.”

Pizza trail, anyone?

 

What a mess.

And I’m not just talking about the cleanup from Tropical Storm Isaias. Hasn’t been much fun without power, internet or reliable cell service.  (I hope everyone is staying safe and gets power soon — my town’s projection was 5-7 days!)

Heck, it’s been tough to even do a blog post about a very important New York federal court decision (which you can download here) this week ostensibly striking down several FFCRA rules.

Seemingly every law firm is doing its own analysis so I’m not going to do a complete deep dive in it. (Besides, my internet is fleeting).

Among the good recaps, I’d recommend Jeff Nowak’s FMLA Insights’  excellent summary here.

The issue for employers is that there are plenty of unanswered questions from the decision leaving employers with much uncertainty now.  In fact, employers should definitely talk with their counsel about what this means for their business.  My firm will be producing a summary on its blog in the next day or two as well but it’s not going to have all the answers because, well, answers are hard to come by.

But here are some preliminary takeaways (and questions) from the decision from my perspective.

  • What’s the Scope and Impact?  The decision is not necessarily the model of clarity. Does it apply to just New York employers? Nationwide employers? There are arguments to be made for both. Moreover, is this going to be a final decision or is the Department of Labor going to seek an immediate stay and appeal? What will the Second Circuit (of which, Connecticut is a part of) do? One thing is for certain — remember that the FFCRA (which has both the emergency paid sick leave and the FMLA+ provisions) only applies to employers with less than 500 employees. For big companies, the decision isn’t really applicable.
  • What’s up with Intermittent Leave? This is a big open question from the court’s decision.  The decision said that the employer consent requirement from the DOL regulations is an overreach for implementation of intermittent FMLA+ (that is, to care for a child where there is no suitable child care).  Does that mean an employer has to agree to dozens of such requests at the same time? What about schools and teachers? How does this impact the FMLA school regulations? If the employee can work from home, can the employer simply deny the leave? Can the employer offer to provide suitable child care to avoid granting the leave altogether?
  • For “Health Care Providers”, What Employees Can Still be Exempted? Under the DOL regulations, a health care provider could deny FFCRA coverage to virtually all of its employees. But the court’s decision said, in essence, nope.  The court added, for good measure, “the Final Rule’s definition is vastly overbroad . . . in that it includes employees whose roles bear no nexus whatsoever to the provision of healthcare services.”  What will happen next? Will the DOL come up with a revised rule? Will it appeal? Until then, health care providers will need to tread carefully on its exemption.
  • Are Furloughed Employees Now Eligible Again? One of the key regulations has been that an employer must have work available for the employee in order for the employee to be eligible for the leave.  As Jeff rightly pointed out in his post, this is a big deal. “The Court’s decision to strike these work availability requirements opens the door for claims of leave by employees who are furloughed or temporarily laid off or whose employers have had to temporarily cease operations under state or local orders, or due to economic circumstances during the pandemic.  [This ruling also likely blows up DOL FAQs 23-28, all of which deal with the employee’s inability to take FFCRA leave when there is a business closure or reduction in hours.]”  Does this mean employees should get retroactive eligibility? What about those on Shared Work programs in Connecticut? Should employers just terminate their furloughed employees given this risk? All good questions for employers and their lawyers.
  • What Comes Next? So many potential ways this could go. Will the DOL just issue new regulations? One would think so, but when? In what detail? Will this be retroactive? That seems unlikely but no doubt someone will make this argument.

For employers, this is a deep breath time. In addition to dealing with the massive power outages in the state this week, this decision is no doubt going to cause lots of heartburn.  I think patience and thoughtfulness are key; we’re likely to see some further clarifications in the next few weeks and additional guidance from attorneys after all the ramifications have been dealt with.  And some clarity on whether this is going to be stayed and appealed is expected too. For schools, there is a still a bit of time to decide how (or if) this deicision impact classes.

 

Suppose a national origin discrimination case goes to a jury trial (I know we’re not having jury trials during this pandemic, but humor me).

The jury comes back with a verdict finding for the Plaintiff-employee. But it awards the Plaintiff just one dollar.  Is this a victory?

Before you answer, you should know this happens more than you think.  Sometimes a jury may say that an employee was definitely wronged but really didn’t suffer any damages as a result.

But this isn’t the end of the story.  Can the attorney be awarded attorneys’ fees for this so-called victory?

Yes, under state law, says a (somewhat) recent Superior Court case.  And in doing so, the court awarded approximately $95,000 in such fees.

The case, Hasiuk v. Colt Defense, LLC, was decided last September but was only recently published by the Connecticut Lawyer magazine.

The case relies on Conn. Gen. Stat. Sec. 46-104.  As I noted back in 2011, that statute was amended to include the following sentence: “The amount of attorneys fees allowed shall not be contingent upon the amount of damages requested by or awarded to the complainant.”

Despite the fact that the jury verdict was “de minimus”, the court said it was bound by the plain language of the statute to award attorneys fees.

The court also rejected an argument that there was not a strong legal issue to base the jury’s verdict on. The court relied on prior precedent to find that even where a plaintiff’s recovery is small, deterring unlawful acts is a public policy goal that supports the award of substantial attorney fees.

The court also reviewed the fee request itself and found it to be reasonable.  $325 per hour was sought and even the Defendant agreed that such a rate was “reasonable”.

The court also said that because the defendant chose to litigate the matter “fully”, it cannot now complain about the fees racked up by the Plaintiff.

The case serves as an important reminder to employers that even “small victories” can be costly in the long run. Discrimination cases in particular pose a substantial risk to an employer where the payment of attorneys fees comes in to play.

It’s yet another reason why so many of these cases settle.