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.