Wednesday was supposed to be the first day of vacation for me and my family in Florida.

Instead, I spent it at home helping clients run from one crisis to another.

It’s pretty amazing how quickly all of our lives have changed so dramatically.

Also amazing: Congress passed major legislation on leave related to COVID-19.  In record time.

Normally, I would recap those types of things here but everyone (including, to be fair, my lawfirm) has already recapped it so I have little to add.  That said, you can and should read my firm’s recap here. 

What else transpired on Wednesday that Connecticut employers need to be aware of?

  • Another day, another executive order — this one titled “7F” (quick question: What happens after 7Z? Let’s hope we don’t have to get there). This one closed recreational facilities such as bowling alleys and zoos.  Expect more closures in the coming days.
  • Access Health CT announced that it was having a special enrollment period starting on Thursday, March 19th.  You may want to tell employees (or laid off workers) of this option and get as many people on the insurance rolls as possible.
  • If you haven’t see it yet, Connecticut has also put up a centralized website on the COVID-19 panemic. I find it useful to have one place to look for Executive Orders, daily updates and more.  Worth a bookmark.
  • I’ve had a number of quesitons about unemployment.  I’ve pointed several to the FAQ released by the Connecticut DOL a few days ago that I previously cited. If you haven’t see it yet, you can access it here. It has links in the document too.
  • Employers here should start reviewing the “shelter-in-place” rules that have gone into effect in San Francisco and some other counties in California. I have little doubt that some version of that is in the cards for New York and Connecticut sometime soon.  There are exceptions for essential businesses but those exceptions are far less than you might think; even Tesla was asked to shutdown.

Employers should review all of the leave provisions passed by Congress and signed by the President.  The provisions go into effect on April 2.

Before I do a recap, I want to share a hopeful tidbit. My friend Tim plays the bagpipes. For the last few years, St. Patrick’s Day (and the weekend) is his favorite time because his band rents a bus and tours pubs across Connecticut.

Suffice to say, there was no pub crawl yesterday.

But after the workday, we got a text. Come to the street at 5:30 p.m. Stay in your car.

And at 5:30 p.m., out waltzed Tim in his full garb playing the bagpipes — at a safe social distancing distance — for neighbors and a few friends.

Really, you couldn’t ask for much more after another tough day for employers and employees.
Late on Tuesday, Connecticut announced that 30,000 unemployment claims had been filed since Friday.

To give some perspective: In January 2020, Connecticut reported nonfarm employment at 1.696M. Extrapolating the numbers a bit, suppose the 30,000 job loss takes us down to 1.666M.

The last time Connecticut had that number was in July of 2014.  Meaning five years of job gains have disappeared in five days.

And we’re not even done with the week.

In case you’re wondering, once we hit 100,000 job losses, that will take us back to the low point of January 2010.

I’m anticipating those numbers to go far higher.

What else should employers in Connecticut be aware of from Tuesday?

Another long day.  Though my friend called it a great day. Why?

It’s probably the best day in the next month.  Stay safe.

Monday, March 16th was brutal.

I kept using that word over and over in conversations with employers who are watching their entire business disappear overnight.

Brutal.

Layoffs — at a scale that I think is difficult to comprehend — are sweeping through Connecticut businesses.

Restaurants? Closed (except for takeout or delivery).

Gyms? Closed.

Movie theaters? Closed.

And all the employees out of work for now.

You can see Governor Lamont’s full executive order (7D) here. 

There was SO much happening today that I’m just going to recap a few other items for employers in Connecticut to consider.

Employers should delve deeper into each of the topics that may impact them.

Employers that have to layoff staff because of the government ordered shutdowns should continue to provide their employees with information on filing for unemployment benefits.

Employers may also explore whether they can keep the employees on their health care plan during a time of temporary layoff.

The next few months look to be very tough on employers and employees with each day bringing bad news. Until we can flatten the curve and get past this wave, expect more rough days ahead.

For more, my firm has started a resource page for Connecticut employers covering at least two dozen topics so far. Feel free to visit and bookmark it here. 

For those that have seen the trends in France, Spain, Italy and more, it seems clear that we’re about to enter a new phase of this coronavirus (COVID-19) pandemic here in Connecticut: Lockdown.

As businesses can and must plan their workplaces for worst-case scenarios, it’s important to first understand that the term lockdown isn’t entirely accurate. There IS still business going on, just in far more limited quantities.

So, for perspective and for businesses trying to plan for their employees, here are some things Italy (and other nations) have implemented that could be in the cards here.  Given the speed at which this pandemic is moving, it’s not unrealistic to think this may happen this week.

What is impacted?

  • All stores except groceries and pharmacies are to be closed. (One could see “groceries” to include some big box stores like Target or Wal-Mart that double as groceries.)
  • All workplaces that are recreational or leisure in nature (what some might call “non-essential”) are closed. That would include theaters, museums, spas, gyms etc.  Those places may still have essential personnel deal with finances etc. But any public interaction is barred.
  • All restaurants and bars are closed. Initially, they were kept open but then moved to close them.  Other nations have now followed suit or, like Spain, just allow for deliveries only.
  • Some workplaces are open for now, but only essential personnel should report. If someone must travel even locally, he or she must have a work-related or family-related reason and a reason why it can’t be postponed. Public transportation and airports are continuing but frequency and services are severely curtailed.
  • All social interactions — family visits, parties, etc. — are barred.

What are some workplaces doing in Europe to keep their workplaces at a lower risk when they must work in the office or perform work in shop floors?

  • Closing internal kitchens, cafes and breakrooms to prevent employees from socializing with each other.
  • Instituting strict santitation procedures, which may include temperature checks.
  • Physically closing all conference rooms except for virtual conferences with other offices or even other conference rooms in the same building. No meetings.  Stay six feet apart from each other minimum.
  • Creating plans for staggered shifts during the day, or even staggered weeks. That way if one group gets infected or exposed, there may be another group that can still have essential functions.
  • Other services, like utilities, have instituted their own social distancing measures.

Not all of this is feasible in some workplaces. But it’s clear that this pandemic calls for unusual solutions.  The time is now to figure out what works best. The CDC and OSHA both have some suggestions on their websites.

It’s time that we are realistic with each other and with our workplaces. This is going to be a very rough 1-3 months while we go through this initial wave, unlike any we’ve seen in our lifetime.

The sooner we understand and operate for this scenario, hopefully, the better we can protect our friends, family and co-workers.

I’ll be practicing what I preach — no in-office work for me for the foreseeable future and no in-person social interaction beyond my family at home.

The more of us that can (and do) the same, the better off we will be.

Stay safe.

Fun fact: There was no class on pandemics in law school.

Sure, we briefly joked about the power that Governors and Presidents COULD exert in case of an emergency but it was mostly in the context of nuclear war and talking about how a Secretary of Commerce could become President (yes, this was way before Designated Survivor).

And yet this week, my fellow lawyers and I have been fielding calls that would’ve seemed absolutely crazy a few weeks ago.

The weird thing is that I’ve been driving a few of my friends, family and colleagues a little crazy with my predictions for over a month that we were headed here. I got designated a COVID-19 “expert” (no certificate required!) early on and frankly, I think they were humoring me.

How DO you practice law in a pandemic?

In answering that I’m reminded of a joke about how you tell the difference between a male and female bear?

Very carefully.

Over the course of this week in particular, I’ve had several conference calls with my fellow partners and associates about how we are addressing our clients’ issues and how do we have solutions to questions that there is no precedent for.

What I appreciate is that we’ve done it with a sense of urgency balanced with the need to get it right.  Each time, we’ve done our homework and talked things through.  That’s a start on how you practice.

And also ask: How are the very tough decisions we make today going to look with hindsight?

That’s something I’ve tried to impart on the people I’ve talked with this week.

There are no easy solutions.

No “low hanging fruit” for us to pluck off and claim victory.

I heard from a American friend tonight who works in China running a legal department for a major company.

“You will get through it. We are slowly getting back to normal over here. And, your closets will be incredibly organized! Hang in there.”

Today was the first day when I felt some optimism that that will be the case.

I know my firm has been nimble and we’re geared up (as many others are) to work remotely and continue to help our clients.   I know practicing law now means helping our clients in a way without precedent.

Stay safe and healthy everyone. Let’s flatten the curve, isolate if we can so that our first responders, health care workers, delivery people, utility workers and more can stay healthy through this pandemic.

When we get through this — no doubt with some rough days ahead — we will be wiser and stronger.

And we will have amazing closets.

Late on Friday, March 13, 2020, the Connecticut Department of Labor issued new FAQ for employees and employers dealing with the COVID-19 pandemic.

Some of this may be repetitive of what I and others have posted before, but I thought it would be helpful to provide both a link to the materials but also some of the content relevant to employers as well.

As the CTDOL notes, however, this FAQ should not be taken as legal gospel. It’s simply an attempt to provide some needed guidance here.  As you will see, it still leaves some decisions down to a case-by case basis.

For example, if an employer requires an employee self-quarantine even though he/she is not sick (or, closes its doors for a 2 week period) and doesn’t pay its employees, are the employees eligible for unemployment?

Probably, though the DOL says decisions will still be made on a case-by-case basis.

Here are some other FAQ:

What happens if an employer cuts an employee’s hours to part-time; is the employee still eligible for unemployment?

Yes, the employee may receive partial unemployment.

Can an employer require employees to stay home (and not pay them) if they are sick with COVID-19?

According to the DOL: Yes, you can require your employee to stay home. However, you should issue the employee an Unemployment Separation Package, found here.

But the the DOL says that the “individual must be physically able and available for full time work in order to qualify for unemployment benefits.”

That’s probably going to exclude most people anyways, so call this one a bit ambiguous.

If an employer has to close the doors of its business for 14 days because an employee is sick and other employees need to be isolated, will it be liable for unemployment benefit charges?

The DOL says: You will be liable in the same way you would be for a layoff or a shut down.  If the President declares a disaster that includes Connecticut and your company, it is possible you may not be liable.

Is there an alternative to laying off employees if business has slowed down as a result of COVID-19?

Again the DOL says: Yes. The Department of Labor offers a SharedWork program which is a smart alternative to a layoff. The program allows employers to reduce the hours of full-time employees by as much as 60 percent, while their workers collect partial unemployment benefits to replace a portion of their lost wages.

Does the Paid Sick Leave (PSL) law cover absence due to COVID-19?

Says the DOL: For covered service workers and employers with 50 or more employees, PSL will cover certain absences caused by COVID-19.

If an employer decides not to open the business for the day or for a specific work shift, and notifies the employee not to report for work, must the employee be paid?

Says the DOL: If you are a non-exempt “hourly” employee, no. An employer is not required to pay a non-exempt employee for the time in which he or she performs no work.
• If you are an exempt employee and you have worked for any portion of the week, yes. The employer is required to pay you the full weekly salary if you work for any portion of the week.
• Also, it is not permissible for the employer to make any deduction for the time that the exempt employee is absent from work from the employee’s accrued Paid Time Off (“PTO”) benefits, because Conn. State Agencies Regs. § 31-60-14(b)(2)(A) does not permit a deduction “of any kind” when a lack of work is occasioned by the operating requirements of the employer.

If an employer decides to keep the business open, but the employee elects not to report for work, must the employee be paid?
The DOL says: No. For the non-exempt employee, an employer is not required to pay a non-exempt employee for the time in which he or she performs no work. For the exempt employee, the employer may make a deduction in pay in full-day increments pursuant to Conn. State Agencies Regs. § 31-60-14(b)(1)(B) because the employee is asking for the day off for personal reasons.

If an employer is shutting down for say a 2 week period, does it have to pay a non-exempt or exempt employee who does not work at all during the 14 days?

The DOL says: No. Employees are not required to be paid for any work week in which he or she performs no work at all during the week.

This is just a sampling of the Q&A available. Note that for many employers, federal law also must be complied with.

For employers struggling through uncharted territory, we’re answering questions we never thought we’d have to ask.  Be sure to talk through some of these issues with a trusted advisor.

Wednesday felt like a breaking point. The day when COVID-19 seemed to come out from under your office desk and said “You’re surrounded. Go home.”

NBA – Suspending its season indefinitely.

Schools in Fairfield County – Closed with the likelihood that more schools will follow soon.

Tom Hanks – Another COVID-19 victim.

Of course, this isn’t impacting everywhere at the same time. But it seems that several businesses are starting to contemplate severe restrictions in their workplace.  (Update: Thursday morning, Governor Lamont recommended that all businesses try to have employees work from home ASAP.)  Sure, many businesses will stay open or try to; we’ll need markets, pharmacies and utilities just to name a few.  But those businesses that can try to minimize their workplace interactions, probably will — or at least try to move to a remote-only workplace.

Even the courts are now getting into the act by showing how the virus is going to impact litigation.

The Hartford Superior Court issued an order today making all conferences via telephone and telling parties that hearings/trials will be automatically postponed 3 months with a coronavirus reason.

And even that seems optimistic.

Some lawyers are making promises that their business will continue as normal.

I can’t see it that way.

The fact is we’ve never experienced anything like this in our lifetimes. Working remotely for a few days is one thing.

But will we be working remotely for two weeks? Two months? A year?

Employers will face critical tests to their businesses and this will test their patience and their reserves.  Mass layoffs don’t seem far off.  Employment litigation will be on hold for the time being. Extensions of time will be as common as, well, a cold.

Of course, at some point, we’re going to get back to normal. A new normal to be sure, but history shows us that pandemics — even the worst of them — recede.

The days, weeks, and months ahead will pose unique legal questions for us all to consider.  Questions that we never thought we’d have to address like: When things improve, can we institute temperature checks on people entering the workplace?

But I appreciate being the trusted advisor to so many.  Over the last few weeks, we’ve already tackled a bunch of issues together.

And so, whatever struggles we will go through, we can continue to do it together.

Stay safe.

A few weeks ago, I talked about the impact that a public health emergency might have on employers and the statute addressing such emergencies. Today, Governor Ned Lamont invoked those provisions in declaring a public health emergency.

But in doing so, he also invoked another provision, Conn. Gen. Stat. Sec. 28-9 –– the civil preparedness emergency statute.

And it’s that provision that — potentially — gives him broad powers unlike any that we see in normal times.

The key provision here is Section 28-9(b)(1) which states, in part:

Following the Governor’s proclamation of a civil preparedness emergency pursuant to subsection (a) of this section or declaration of a public health emergency pursuant to section 19a-131a, the Governor may modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever the Governor finds such statute, regulation or requirement, or part thereof, is in conflict with the efficient and expeditious execution of civil preparedness functions or the protection of the public health. The Governor shall specify in such order the reason or reasons therefor and any statute, regulation or requirement or part thereof to be modified or suspended and the period, not exceeding six months unless sooner revoked, during which such order shall be enforced. Any such order shall have the full force and effect of law upon the filing of the full text of such order in the office of the Secretary of the State.

Now, to be fair, normally such declarations go unnoticed by the public.  But the use of the statute confers broad powers and broad immunity to the state and political subdivisions.

Just last year, the Connecticut Supreme Court reviewed liability for an accident that occurred during a snowstorm (which was also an “emergency”) in Sena v. American Medical Response and it noted that such emergencies warrant strong protections for immunity.

Now, with an emergency, the Governor could suspend wage/hour laws that might be at odds with a public health emergency.  (Not that I think this will happen).

The law also allows for the taking possession of land, machinery and equipment in the event of a shortage or disaster including a “rolling stock of steam” locomotives.  (Somehow I don’t think that’ll be necessary here as well.)

But employers — beware of a related, yet little-known statute: Conn. Gen. Stat. Sec. 28-17. That provision makes it illegal for an employee to be discharged “because he is a member of any organization engaged in civil preparedness or because he is eligible for induction into the armed forces of the United States.”

So, over the next few months, if your employees are involved in civil preparedness organizations, be mindful of these protections.  (And you obviously will have bigger issues to worry about too.)

We are definitely in uncharted territory as the Covid-19 pandemic spreads and the preparations continue.

Each day of late feels like a week in terms of the firehose of news pouring out each day.

On Monday came news that Italy was going on lockdown.  For a month.

And Connecticut state government rolled out a series of orders that included no travel and limits on meeting sizes to 100 or less.

And New Haven cancelled it’s St. Patrick’s Day parade. (Hartford was said to be considering it as well.)

And the federal court in Manhattan issued orders restricting courthouse access to cases.

It’s gotten me thinking a lot about how these next few months might start to look for employment law and litigation around the state (and litigation in general).

It’s not pretty.

Start, for example, with claims filed at the CHRO.

  • Will in-person mediation sessions and fact-findings still be scheduled?
  • Will public hearings have to be postponed?

And then there are the lawsuits.

  • Will case deadlines be automatically extended?
  • Will people want depositions to still be done in person?
  • How are we to conduct business when our clients are in crisis mode?
  • Will some employers, like hospitals really need to comply with routine discovery in cases when they are stretched thin? If not, how are deadlines to be adjusted?
  • Will mediations and settlement conference still go forward or will parties insist that it be done telephonically?
  • Will the courts move to telephone and online conferences only? Is that even feasible?

And then there are the day-to-day employment law issues that we can only scratch the surface of.

  • Will sexual harassment prevention training sessions all still need to be completed by October 1, when in-person gatherings are prohibited or absenteeism is high?
  • How will we be implementing paid family leave in the middle of a crisis?
  • If a State of Emergency is declared, what does that do for other requirements that employers have to comply with?

Employers too may have to deal with sets of laws that it hasn’t thought about in a decade. All of a sudden, a reduction in force might be a necessity. Or the WARN notice.

Even late on Monday, we’re getting a bunch of new guidance from the Department of Labor OSHA has released guidance that provides some much needed practical suggestions for employers dealing with this particular crisis.  The Wage & Hour Division has released guidance on FLSA and FMLA questions as well; have a question on quarantines and isolation? It’s in there.

Regardless, even with this new information, there’s just way too much uncertainty right now.  And while that might lead to business for employment lawyers, the next several months have the potential to turn ugly very fast.

Everyone keeps hoping for the best, but now continues to be the time to plan for the worst.

As Connecticut reported it’s first known COVID-19 cases over the weekend, it is becoming apparent that the time for preparation for a pandemic is starting to end, and the time for action items is beginning.

To that end, it seems that nearly every lawfirm is starting to compile answers to some frequently asked questions.

For a few examples of ones I found useful of late, look at FisherBroyles, Littler, FisherPhillips and FaegreDrinker just to name a few. Everyone’s advice is fairly similar here so I’ll try to focus on Connecticut-based information for some additional tips below.

I’ve already touched on some issues in prior posts (since January, in fact) but because things are continuing to change rapidly, here are a few additional thoughts on some FAQ for Connecticut employers .

With Spring Break Plans On the Immediate Horizon, Can I Prohibit Employees from Traveling?

No.  But employers can ask where the employee has traveled, and if the employee has traveled to an area designed Level 3 by the CDC, ask the employee to self-isolate upon return.

This guidance, however, now has to be tempered by the fact that new cases are popping up every day in the United States and this will continue to multiply exponentially.  So, while this guidance sounds good today, ask again in a week or two or three.

If I Think An Employee May Have COVID-19, What Can I Do?

You can do a few things. For example, you can ask if the employee has symptoms such as fever or a dry cough.  You can also direct those employees who have virus-like symptoms or who are at high risk for infection (they live in a house where someone else has it) to go home.

If I Get a Confirmed Case of an Employee Having COVID-19, Can I Do Anything Then?

Certainly, you can tell the employee that they are not allowed to work and require the employee to provide medical documentation clearing them to work.  If they can work from home, you can allow it.  You can also tell other employees that they may have been exposed to COVID-19 though you should still try to keep confidential the identity of the person.

Employers may also wish to inform co-workers in close contact with the sick worker that they should stay home for 14 days of self-isolation too to minimize the risk of further spread in the workplace.  Ask the sick worker about all of the close contacts he or she has had so you can do contact tracing.  The outbreak at Biogen in Massachusetts shows the serious disruption one sick employee can cause.

Can I Tell Employees to Just Stay Home if They Are Sick or Have a Fever?

Yes. The situation arises regarding whether the employee will be paid during that time, whether that time off is attributed to vacation or other paid time off.  Companies are struggling with a response here; Trader Joe’s just offered more flexibility for employees in such cases.

Each employer will have to find the right answer for itself.  The CDC advises that you can require an employee to be fever and symptom free for 24 hours.  Consider a temporary suspension on your illness policy; yes, there may be an employee who will abuse this but a generous policy can potentially stop a serious outbreak within your company.

If the Situation in the United States Worsens, Do Some Rules Change with a Pandemic?

Probably.  The EEOC has advised, for example, that taking the temperature of all employees may violate the ADA under some circumstances, but has indicated that the rules may change during a pandemic such that the illness may pose a “direct threat” to others.  As the EEOC has stated:

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

As of March 8, 2020, a pandemic has not been “declared” though several states such as New York have already declared states of emergency. Employers should be cautious for now but this has the potential to change very quickly.

Does COVID-19 Fall Within Connecticut’s Existing Paid Sick Leave Law?

While the CTDOL website doesn’t indicate an answer, I don’t think I’m going out on a limb to say, “Yes”. But because Connecticut PSL law only covers a week’s worth of time, employers will still have to address the additional time that employees with COVID-19 should remain out of work.

Can I Require Employees  to Implement Infection Control Procedures, Like Mandatory Hand-Washing?

Yes. As I’ve also noted before, employers do have the obligation to provide a reasonably safe workplace. So, you should be encouraging employees to take such measures too. Here are ten songs you can encourage employees to sing too.

Are There Any Connecticut Resources To Be Aware Of?

Yes, the Department of Public Health has launched a website here. Hartford Healthcare has set up a 24/7 command center here.

Every indication is that the COVID-19 outbreak will get considerably worse before it gets better. One need only look to Italy for such an example.  Employers need to be ready now to act.