Lately, I’ve been talking with more employers about permanent reductions in force.

It’s not fun.

And it’s not something I thought we’d be talking about 3 months ago, and yet it’s not foreign to me either.

In fact, I spent several of my earliest posts here on this exact topic. 

As I talk with employers here who are offering severance agreements with their staff for the RIF, there are two provisions of the law  that I highlight for them that are different than normal agreements.

For the “typical” agreement, many employers are now familiar with the requirements of the OWBPA (the federal Older Workers Benefit Protection Act)  — that is that the person has 21 days to consider the agreement, 7 days to revoke, the right to consult with an attorney, etc.

But for any reduction in force (termed a “exit incentive program”) where a separation agreement is going to be used and where the employee is over the age of 40, there are two different provisions of that law that come into play.

First, the employee must be given 45 days to consider the agreement, up from the 21 days.  Easy enough to add.

Second, the employer must provide the employee with detailed information about the RIF in writing.  Specificially, the employer has to disclose:

  • The class, unit or group of individuals covered by the exit program.
  • The eligibility factors for the exit program.
  • The job titles and ages of all individuals eligible for or selected for the program.
  • And the titles and ages of all those who were not eligible or selected for the program in the in the same job classifications or organizational unit.

Notably, this list does not include employee’s names though some employers are understanably concerned about releasing such informaiton.  In such cases, employers can remind the employees that the lists are confidential.

There’s much more that needs to be considered by employers in a RIF. Seeking legal counsel early on to look at things like disparate impact etc. is important to ensuring that the RIF doesn’t create any additional liability concerns for the employer.

Let the mini-golf begin.

As I noted in an earlier post, Executive Order 7PP allows for outdoor recreation businesses to reopen subject to rules that were to be promulgated by the DECD.

Those rules have now been released and overall, they’re pretty consistent with the rules we’ve seen for offices, outdoor museums/zoos, and outdoor dining at restaurants.

You can download the rules here.

Importantly, the DECD has finally defined what is “outdoor recreation”.  It includes, for example, 1 on 1 training outside, so long as social distancing is maintained.  (Classes are not yet allowed.)

Beyond that, here’s the list of other outdoor recreational businesses that are allowed to reopen on May 20th:

  • Equestrian (subject to Dept. of Agriculture guidance)
  • Mountain Biking
  • Camping
  • Boat Tours (subject to 5 passengers)
  • Charter Fishing (subject to 5 passengers)
  • Sport Fishing
  • Go Kart Racing (bring your own, no rentals)
  • Golf
  • Driving Ranges
  • Tennis
  • 1:1 Training, outdoors maintain 6 feet
  • Race Tracks (practice only, no spectators)
  • Campgrounds (subject to DPH guidance)
  • Outdoor Shooting Range
  • Kayaking
  • Dirt Biking (practice only)
  • Mini Golf

As spring has finally blossomed here in state, this is welcome news.

First off  – a caveat: These rules are in addition to any industry guidelines that are also in play. For golf courses, for example, the rules provided by the CSGA should continue to be followed.  Golf courses have been operating for a few months now with rules such as “No touching the flagsticks”; don’t expect those to change anytime soon.

What are some of the other applicable rules?

  • The maximum gathering size is still limited to 5 people
  • Clear signage must be used to reinforce new policies
  • Social distancing markers must be used
  • Touchless appliances installed
  • Employees should not use shared equipment or, if they must, it needs to be cleaned after each use
  • All employees and customers must wear a mask or other face covering at all times
  • Training must be instituted
  • Cleaning and disinfection protocols must also be followed

Employers in these areas should review the sector rules in detail.  And as with other business reopenings, employers are required to self-certify that they are following these rules prior to reopening.

Last night, Governor Lamont issued Executive Order 7PP which, for the most part, confirms what many of us have been expecting for the last week or so.   As I’ve said before, the first round of reopening businesses remains on track for tomorrow (May 20th) but there have been more tweaks over the last day or so.

Here’s what you need to know:

  • Essential businesses will still need to follow the “Safe Workplace Rules for Essential Employers“; those rules will remain in effect even after other businesses return tomorrow. This clarifies a point of confusion that was raised with the new Sector Rules for offices and whether the new rules would apply to Essential Businesses. The EO says “no, they do not.”
  • Hair salons and barbers will not be opening tomorrow; a new date will be established soon — likely two more weeks or so.
  • The EO makes formal that the Sector Rules that have been previously released will apply to outdoor dining at restaurants, offices, non-essential retail stores and malls, and outdoor museums and zoos.
  • The EO allows for the DECD to release new “Sector Rules for General Business” that will allow some reopening of outdoor recreation and other businsesses.   Those rules will be released later this morning here.  (NOTE: They are now available here: https://portal.ct.gov/-/media/DECD/Covid_Business_Recovery/general-reopen-051920.pdf?la=en)
  • For restaurants that do open, the EO clarifies that seating at restaurants are limited to no more than 5 people in any table.  They do not need to be in the same household.
  • The Executive Order also specifes indoor gyms, fitness centers, or other studios offering “in-person fitness, sporting or cretational opportunities or instructions”, Off-Track Betting Facilities, and movie theaters remain closed through June 20, 2020.
  • Overnight camps are essentially prohibited from operating for the foreseeable future. This has been previously discussed informally before but the EO makes this clear.  Day camps will be allowed to operate after June 22, 2020 with strict rules to be released soon.
  • Summer school at public schoools will not be allowed to begin operations until July 6, 2020.  Private schools are encouraged to follow the same schedule as above.

As I said yesterday, businesses that are planning to reopen should do so carefully and cautiously. The rules in this area continue to change and employers need to be following them all to reopen safely.

If you told me in January that I’d spend a week in May:

  • Holding a surprise car parade (“What’s a car parade?”, I’d be asking) for my wife’s birthday;
  • Sitting 10 feet apart outside in a cul-de-sac with a friend sharing stories;
  • Wearing a Hartford Whalers mask when walking outside;
  • Receiving online grocery deliveries (and wiping off the groceries upon arrival);
  • Having a law school class reunion on Zoom (“What is Zoom?”), and,
  • Doing all my work at home (with multiple video calls a week!);

I’d have said that you have quite a colorful imagination.

And yet here we are.

Despite the madness of the last two months, the fact remains that we are all pretty resiliant in way or the other.

We adapt.

Things that were completely foreign to us only two months ago, are now seemingly a way of life.  Most of us are doing what we need to do to survive and stay safe.

For employers, this week presents a new challenge — adapting to the new rules of reopening which are still set for May 20th.

There are a lot of rules that have been set forth by the government here in Connecticut to reopen. But here are five things employers should consider before reopening:

  • Develop a reopening plan and timeline.  That means taking a look at the functions that are most essential.  Which tasks do you need to have done in the office? Which employees are crucial to getting those tasks done? Keep in mind the mandate that those that can still work from home should still work from home.  The plan ought to be flexible and employers will be capped on 50% capacity anyways.
  • Sweat the details.  In working with employers seeking to reopen their offices slowly, the employers have to think about all the small details. Conference rooms. Common areas. Elevators. Bathroom cleanings. Even the employee’s commute and child care.  No detail is too small.
  • Secure masks and, even gloves.  Employees will be required to wear masks and face coverings most of the time. (Some exception is made to a private office).  Employers will be required to provide one to employees, particularly if they do not have one.  (Employees can wear their own.) Make sure to secure this supply before reopening.
  • Develop a training program.  The rules for reopening require employers to provide their staff with training on how to stay safe in the workplace. Designate an administrator to this program (someone in HR or operations, for example) and review it periodically to make sure that it addresses all the key items.
  • Once you’re ready, be sure to submit the self-certification. I previously provided a link in a prior post. But this should only be done when you’re ready to reopen.  You’ll then be given a print out of the certification and you should post this around the office.

Employers in the hospitality industry have additional requirements to comply with. Whatever the sector rules are for reopening, employers ought to be sure that they are meeting all the requirements.

At a minimum, consider talking with legal counsel to understand all the rules that have been put in place for employers and any questions that you may still have.

Above all – take it slow. Employees are understandably nervous about going into a workplace.  And you don’t want to open up, only to have to isolate everyone again. Consider going to a 4 day on, 10 day off schedule.  

 

After releasing the reopening guidelines for businesses earlier this week, the state has updated its website to include a new online certification that employers must complete before reopening the physical workplace.

You can find the reopening certification here.

As the website indicates:

Business [sic] must self-certify and commit to comply with the Sector Rules established to keep their employees and customers safe. Once complete, you will be provided with signage and a badge that you can voluntarily post at your place of business or website.

What is a bit intriguing about this certifcation is that it seeks more information than would otherwise be required of employers. For example, if you are a women-owned, or MBE-Minority or a veteran-owned business, you are asked to identify that as well. No reason is provided.

Businesses are then asked to review the rules and guidelines that have been previously released.

And then businesses must self-certify as follows:

As a representative of this business, I understand that the most important consideration will be the health and safety of the employees and customers of my represented business. I have read these rules and would ensure strict adherence to the protocols listed.

And then,

By clicking this box, I am attesting to the fact that the information provided is accurate. False statements made herein are punishable under the penalty for false statement set out in C.G.S. Section 53a-157b.

Presumably, these certifications would be discoverable through an FOI request to the state;  employers must make sure the information in the online form is accurate. This is not just a “form” to click thru; but rather an attestation in which false statements are punishable as a Class A misdemeanor.

We don’t yet know all the ramifications of what failure to follow all the rules to the letter will mean. Will employees say that an employer failed to provide a “reasonably safe workplace” under federal or state law? Will the state seek enforcement actions against such employers?

Suffice to say that reopening businesses isn’t as simple as turning on a light switch. The certificiation of the type of business that you are is also important to get right, particularly if you are submitting information to the contrary somewhere else.  Employers need to invest significant time and resources to understand the reopening guidelines and ensure compliance.  This might not be able to be done by May 20th, which is the earliest reopening date.

Take your time and seek legal guidance where you need to.

For more on reopening businesses, we held a webinar on Thursday discussing all of these details as well as other specific scenarios that employers need to consider in reopening. 

“Come out to the coast, we’ll get together, have a few laughs”.  

Sounds like a plan for reopening businesses in Connecticut next week, right?

Well, that quote is from Bruce Willis’s character in one of my favorite movies, Die Hard. It might also be in peril if you are the same age as Bruce Willis is now — 65. (Yes, really, he’s 65 years old.)

See, the reopening guidelines in Connecticut have this line: “Those in high-risk groups (comorbidities) and over the age of 65 should continue to stay safe and stay home.”

So, no getting together for John McClane.  No “Welcome to the Party, Pal” either.

But what does this guideline mean for employers and the workplace?

Well, first there’s a bit more to the reopening office guidance from the state here. It goes on to state:

While these rules provide a way for offices to reopen in as safe a manner as possible, risks to employees cannot be fully mitigated. Employees who choose or are instructed to return to their offices during this time should be fully aware of potential risks.  Individuals over the age of 65 or with other health conditions should not visit offices, but instead continue to stay home and stay safe.

However, the federal and state age discrimination laws still remain the law of the land; and arguably, that means that employers can’t be making decisions based on age.  Employers should also not be making decisions for older workers about whether or not they should return to work.

Note the language of the guidelines — “should”.  That’s obviously different than “must”.  And the requirement speaks mainly to what individuals should do, not employers.

The simplest solution though is for employers is to talk with or ask your employees if they have any concerns about returning to the workplace and whether they will need any accommodations to do so.  Employers that can have people work from home should have them continue to do so.

The EEOC did recently issue some guidance on the following question addressing the ADA (but not ADEA) related issues:

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? (5/7/20)

The answer notes two important points: 1) If an employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action), and 2) That employers in this situation can seek to use the “direct threat” analysis but only in very limited circumstances.  This guidance, however, still doesn’t address the age discrimination law.

In fact, in a recent town hall, the EEOC leaders made clear that “employers that, under federal law, they could not target employees over 65 or pregnant employees for furlough or layoff based on their “at risk” status. ”

Thus, Connecticut’s guidance — while useful — is not an excuse for employers to violate age discrimination laws.

(Note too: Employees who are subject to stay at home orders may be eligible for paid leave under the FFCRA, so employers have a lot to think about.  There may also be an argument for a Bona Fide Occupational Qualification – but that’s an issue for another day or blog post.)

Now, if only we could go back to travel and following this sage advice also from Die Hard: “You want to know the secret to surviving air travel? After you get where you’re going, take off your shoes and your socks then walk around on the rug bare foot and make fists with your toes.”

For more on reopening, my colleague Sarah Westby and I have posted a full analysis at our firm’s website here. 

We’ll be hosting a complimentary webinar tomorrow that will examine all the issues associated with reopening parts of the state back up.  Given the unprecedented demand, I strongly encourage you to sign up early for the webinar and also to log in 10-15 minutes early to secure your spot to this.  You can register here and this is CLE eligible as well.

Updated 10:15a, May 9, 2020

Late Friday afternoon, Governor Lamont announced that Phase I reopenings will occur as soon as May 20, 2020.  These will include “non-essential” offices that had been closed, restaurants, retail stores and hair salons.  Early on Saturday, we also got all the detailed rules that will need to be met to reopen; we’ll have a full update on my firm’s website after a full review .

You can download the rules for offices here.

The basic outline for the reopening rules are set forth is fairly consistent with the “Safe Workplace” rules for essential workplaces and also my posts on the subject as well.

Here’s what you can look for, according to the early details released in the press conference:

  • Offices should be limited to 50 percent capacity
  • Employees should still work from home where possible
  • Meetings are subject to a five person limit
  • Employees should be seated at least six feet apart and employers should leave desks empty to encourage physical distancing
  • Employers should use physical partioning where possible
  • Elevators should be limited in capacity and in the gathering areas, physical distancing while waiting for elevator should be used
  • High contact areas and bathrooms should be cleaned frequently
  • Common areas and lobbies should also be cleaned frequently
  • Common equipment (copiers, water coolers) should be limited
  • Hand sanitizer and cleaning wipes should be at every entrance and common areas
  • Employees will be required to wear facemasks or cloth face coverings in the office, except when in a private office
  • Employers will be encouraged to increase ventilation and air flow; windows should be opened
  • Employers should segment the office into work zones so there is no mingling if possible
  • Employers should use visual distancing markers; for example, some stairwells can be designated as only “up” or “down”
  • Employers should close non-essential amenities like gyms, lounge areas
  • Employers should use staggered shift work times
  • Touchless appliances should be encouraged as well.

In the update, the Governor indicated that many businesses might choose to remain closed because of the number of requirements.  I also anticipate working from home will remain the norm for now.

Retail stores and hair salons will also have a number of requirements to follow. Restaurants will be allowed to open for outdoor seating only.  Again, I’ll have more of an update after further review.

My firm is now planning to do a full reopening planning webinar on Thursday, May 14th at noon.  Registration is now free and open.  

For those looking for more information on return to work and how to help employees with disabilities or other conditions, the Connecticut Bar Association is producing a webinar on Managing Employees with Serious Health Conditions as Businesses Reopen for Tuesday at 1 p.m.  I’ll be talking about all the return to work guidelines during this webinar.

Have you ever walked into a store, only to have your phone alert you to deals that the store was having? How did it know?

Turns out many phones have Bluetooth Low Energry or BLE, for short.  This technology transmits information like a beacon to things like stores or other physical places, but also to other phones.

Now imagine that your phone could alert other phones that are nearby that the user of the phone had a confirmed diagnosis for COVID-19.  Is that a good thing or a bad thing?

That’s the premise of a new article by Christopher Luise, Co-CEO at Adnet Technologies, LLC here in Connecticut that I was able to co-write with him.

The ability to do contact tracing digitally — that is, identify people who are carrying infectious diseases and the people they may have exposed — is something being seriously explored by several technology companies in the United States. It is already being implemented in Australia and Singapore, to name a few.

For employers, there is a real, credible need for the technology. Employers could identify specific individuals who may have been exposed and get isolate them early to keep the rest of the workplace safe.  But the technology has the potential to be misused as well.

There are some existing laws that may be implicated too. Employers that are monitoring such data may have to alert the employees under Connecticut’s Electronic Monitoring Act.  And privacy laws are certainly in play too.

I highly recommend the article and sharing it with your CIO or IT professional your company works with.

For now, it remains something to keep in mind and move conservatively in adopting this cutting-edge approach to using Bluetooth Low Energy.

Employers that have been receiving loans under the Paycheck Protection Program from the CARES Act have a lot to think about to make sure that the loan is forgiven.

One key aspect is that the borrower/employer must spend 75 percent of the loan proceeds on payroll.

That becomes challenging when employees have been furloughed or laid-off.

And more specifically, I’ve been hearing the question of what happens when employees say that they don’t want to return for now (perhaps because of safety concerns or they are making more on unemployment).

The Treasury Department and Small Business Administration have answered that question in an update to the FAQ on Sunday, May 3, 2020.

Question: Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer: No. As an exercise of the Administrator’s and the Secretary’s authority under Section 1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

What’s this mean for employers? Make sure to document any rejections of offers of employment.  Some employers may want to go one step further and do additional hiring (where needed) to make sure that the new people might “replace” those people who refuse to return.

But bottom line: This is good news and gives employers some additional leeway to get the loans forgiven.  Regardless, documentation and caution remain critical.

For more information, my firm has a PPP loan working group to answer any remaining questions. Feel free to follow the Coronavirus Resource page here.  

As we head into the weekend and look to unwind from another difficult week, it’s time to discuss another (not-quite-as) serious issue as the pandemic.

I used to think that Katherine Hepburn was the most famous performer from Connecticut.

However, my teenager tells me during this Stay-at-Home period that I’m wrong: It is Charli D’Amelio.

If you have a teenager, you know what I’m talking about. For the rest of you, let me explain and explain why I’m convinced that employers still worried about Facebook or even Snapchat are chasing yesterday’s “ghost”.

(I’m not quite as convinced that Charli > Katherine, however.)

You may know that Facebook lost its popularity with teens in the early 2010s with many flocking to Snapchat.  You may not know that Snapchat is no longer where all the teenagers are now hanging out.

TikTok is this year’s social media standout and the undisputed star of this pandemic stay-at-home culture.

(My wife would argue that it’s really The Holderness Family but that’s a different post entirely.)

TikTok (formerly Musical.ly) is not that different from Vine which I covered way back in 2013.  It is a showcase of looping videos, typically around 15 or 60 seconds.

The big difference is that the videos on TikTok are often set to sound and music.  And where there is music, there is dance.

And this is where Charli D’Amelio comes in.

This teenager can dance. Really really well. And she’s really really good at making TikTok videos with her dances.

And while you wouldn’t necessarily think of Norwalk, Connecticut (where she is also isolating with her parents) as the center of anything (no offense to my good friends in Norwalk!), Charli’s dance skills make her one of the undisputed stars of the TikTok universe. (Her sister and parents have followed.)

Don’t believe me? Check out her stats on TikTok. She has over 52 million followers. And her videos have received 3.5 billion likes.

So why is an employment law blog talking about Charli? Well, beyond the fact that I’m always happy when my little state gets famous, I’ve been thinking that when this quarantine ends (and it will — as early as May 20th for some!) will employers suddenly think that TikTok is a thing to worry about?

Like social media sites before, there’s no doubt that employees will, in fact, record themselves at the workplace.  In fact, videos with “workplace” have already been tagged over 50 million times.

A lot of them are harmless. A few are downright fun.  And, so, most employers are probably advised to ignore them.

But like Vine before it, there will be exceptions. And regardless, employers do need to be aware of that what happens at work is going on social media – just not the social media that you’re used to.

Your social media policy is probably a few years old at this point. If you’re looking at reviewing your policies, make sure your policy is broad enough to cover newer sites like this as well as reminding employees of the rules of the road.  There’s little need to panic or overreact to everything, but understanding what is going on is crucial.

Workplace TikTok videos can still be grounds to fire people, but whether employers should in every circumstance has been an ongoing discussion among lawyers and their clients.

To be sure, employers have much bigger things to worry about right now and the forseeable future, but that hasn’t stopped employers from making cavalier decisions based on social media before.

Now, if you don’t mind, I have to go work on my next dance moves. I hear Charli has another dance challenge coming up.