With talk of a pandemic of the COVID-19 illness (coronavirus) becoming more prevalent and advice from professionals that we ought to start preparing now, I thought I’d use this new installment of the Employment Law Checklist Project (#emplawchecklist) to review Connecticut’s existing laws and how those laws might impact employers.
Connecticut has an entire section of law devoted to epidemics and pandemics. The provisions are found starting at Conn. Gen. Stat. Sec. 19a-131. My guess is you’ve never even thought of reading them.
But these provisions describe what can and should be done in the case of a “public health emergency”.
Such an emergency is defined as: “an occurrence or imminent threat of a communicable disease…caused or believed to be caused by… an epidemic or pandemic disease … that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.”
Given that the CDC recently stated that “current global circumstances suggest it is likely that this virus will cause a pandemic” and that there’s a substantial risk of significant number of human fatalities, COVID-19 cases in Connecticut could certainly meet this criteria. The Governor is empowered to declare one on a regional or state-wide level.
What happens then?
The Governor has the authority to do one or more of the following according to Conn. Gen. Stat. 19a-131a. He may:
1) Order the commissioner to implement all or a portion of the public health emergency response plan developed pursuant to section 19a-131g; (2) authorize the commissioner to isolate or quarantine persons in accordance with section 19a-131b; (3) order the commissioner to vaccinate persons in accordance with section 19a-131e; (4) apply for and receive federal assistance; or (5) order the commissioner to suspend certain license renewal and inspection functions during the period of the emergency and during the six-month period following the date the emergency is declared to be over.
This is not so foreign. In fact, Governor Malloy issued such an order back in 2014 for the Ebola outbreak.
The biggest thing that a public health emergency allows is forced quarantine and isolation (along with vaccination by consent). Should quarantine orders start, there is a set of procedures to be implemented by the state’s Probate Court system — hearings, allowances to be represented by counsel, etc. Failure to comply with a court order gives law enforcement personnel the right to enforce the quarantine order. The law also grants personal immunity to those people who assist in quarantine orders.
But it is important to note what the law doesn’t contain — any consideration of the employer. (I’m not saying it should; just noting it.) Employers that have employees placed forced quarantine or isolation have no defined role to play in the hearings. Rather, employers may have to decide how to treat employees who have been out on quarantine. PTO? Leave of Absence? Something else entirely?
And that raises still another question — if an employee is in forced isolation, does he or she have a “serious health condition” under Connecticut or federal FMLA law?
Jeff Nowak of the FMLA Insights blog did an excellent post on the subject which is worth a read here (I’ll wait.)
The long and short? Certainly an active case of COVID-19 could qualify. But if the employee is asymptomatic – then what?
Frankly, you may just want to apply the FMLA in such an instances and have the employee work from home or just go out on leave.
But the employee might just request that the time in isolation or quarantine not be counted against his or her FMLA time too if the symptoms are mild — as they are in the majority of cases of COVID-19.
For now, employers are going to want to review such instances on a case-by-case basis. If a public health emergency is declared, then I would anticipate additional guidance on what employers can do then.
Scope: Public health emergencies give the govenor and the state very broad powers of enforcement — the likes we haven’t seen in some time. Whether such powers will be invoked in such a strong way is one of the unknowns yet.
What else might occur? The law allows the state to suspend the requirements of licenses in a variety of areas. This would allow out of state workers to work in Connecticut without a new license. This could be useful in to staff critical infrastructure such as water, oil and electrical/internet lines.
Any other interesting provisions? Conn. Gen. Stat. 19-131k provides that “each nursing home facility, child care service or youth camp” shall provide potassium iodide to residents, staff members, minors or other persons present in such facility, service or camp when directed by the commissioner during a public health emergency. But before you do so, understand that the public health emergency contemplated here is probably a nuclear attack.
Any Practical Steps Employers Can Take Now? Right now, employers should be taking steps to plan for a possible pandemic of COVID-19. It will certainly not happen overnight, but it remains a real and distinct possibility according to the CDC.
To that end, the CDC has provided updated guidance for businesses. Form your team now and start having discussions with your human resources professionals about the “what ifs” in case a public health emergency is declared.
Other public health professionals have suggested things like cross-training staff so that mass absences won’t derail businesses. That’s easier said than done, but the advice that now is the time for preparation is well worth heeding.