We are still “a few weeks” away from the time when Connecticut starts to relax the “Stay Safe. Stay Home” requirements.  (Officially, the rules are set to expire on May 20, 2020 and Governor Lamont has indicated that some businesses will reopen then.) But, beyond the recommendations of the Reopen Connecticut Advisory Board, which so far are fairly broad, there are increasing signs that some opening back of the state is coming soon.

What will it look like?

The truth is we just don’t know yet which is why I’ve been reluctant to write about it so far, despite others doing so.

There are so many factors in play, including a look at the experiences of other states both nearby and far, to see how they are doing too.

Georgia is often cited for its seemingly-cavalier approach to reopening. Will it work? Time will tell.

Ohio, which has been cited for being ahead of the curve in its restrictions, has started to provide guidelines for opening back up.  There has been a lot of back and forth this week as to whether masks will be required in doing so.

And New Jersey is mapping out it’s “Road Back” too. Connecticut is working with New Jersey and other northeast corridor states to map out a strategy too.

Yesterday, Governor Ned Lamont offered his initial take on what might be required when businesses are allowed to reopen and that provided at least a notion now of what it might look like.

First, he suggested that small retail businesses — so called “Main Street businesses” — might be among the first to reopen.

But to do so, they may need to have measures in place to do so “safely”.  According to the Governor, “Safely means you can wear the mask, have the social distancing.” 

Beyond that, we don’t know exactly what will be required.

However, I suspect that the existing “Safe Workplace” and “Safe Retail” rules that have been put in place by DECD will continue to be the path forward.  Here are a few things from those rules that may continue to be followed:

  • Those employees who are able to work from home should continue to do so for the foreseeable future.
  • Significant reductions in the numbers of employees and customers allowed at one time
  • For workplaces, significant access control measures for external visitors
  • Masks or cloth face coverings will continue to be required, with limited exceptions
  • Physical distancing measures should be implemented; this may also include closing break rooms or cafeterias
  • Where possible, temperature checks may be implemented at the start of a shift
  • Retail stores may be limited in their capacity and high risk behaviors will be barred

Employers that are eager to be ready to open their workplaces should be studying the existing safe workplace rules for essential employers to see how they might implement these rules if they were to continue for non-essential workplaces too.

As for a “return to work” date? Stay tuned.

The United States Department of Labor recently updated its guidance on the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (FMLA+).

My colleagues at Shipman & Goodwin recapped the new guidance here.

One of the key takeaways from is that under the USDOL’s prior guidance and regulations, it was not clear if an employer could require an employee to use accrued leave during the 10-week period of FMLA+.

In its recently issued guidance, the USDOL clarified that an employer can require employees to use accrued paid leave under the employer’s policies to cover absences under the FMLA+.

The practical effect is that an employer might be able to require employees to use up their accrued leave while out on FMLA+, potentially exhausting their leave balances.

Once employees exhaust their accrued leave, then they still will be able to receive 2/3 pay for the remainder of the FMLA+ leave.

Sounds clear, right? Well, not exactly. The regulations and guidance issued by the USDOL has been heavily questioned by others as being directly opposed the express terms of the FMLA+ and EPSLA.

Employers may want to keep watching this space (and others) to see if the USDOL issues a clarification before requiring employees to use accrued leave during an FMLA+ absence.

Over the weekend, I finished binge-watching Apple TV+’s The Morning Show and had two immediate reactions.

First off, OMG these people are not social-distancing.  The workplace is so crowded! WHERE ARE THEIR MASKS?

But after that, I was impressed that the show presented a fairly complicated (at least for a drama) presentation of the #MeToo movement and sexual harassment.

Remember #MeToo?

It seems like it was years ago that Harvey Weinstein was sentenced to 23 years in prison for various sex crimes.  Yet it was just last month.

But because this pandemic is so all-consuming that news quickly became a footnote.

In fact, since then, there’s been very little discussion about the #MeToo movement.

Which got me thinking: What does happen to #MeToo as this pandemic rages on?

I think the answer is far more nuanced than any clickbait headline could suggest.  Certainly, the lack of in-person interactions — business travel, restaurant meetings, general workplace gatherings — will have some impact on claims for the foreseeable future.

But after that?

And here’s where my watching of The Morning Show suggests a further path forward.

If you haven’t yet watched it, I’d highly recommend it.  It has it’s minor flaws, but the casting is utterly superb and like a lot of good shows (Breaking Bad comes to mind), it gets better as it goes along.

What it gets right in several (but not all) places is its depiction of relationships in the workplace. It shows workplace relationships in all their different forms. Friends? Workmates? True lovers? It’s got it all.

It shows how interactons can be viewed from different perspectives, without letting anyone entirely off the hook.

That invite to the hotel room.  Did you really think it was just to watch a movie?  And do you really think that a female subordinate seeking advice is actually attracted to you?

To be sure, it’s still a fictional television show.  And yet, Steve Carrell’s character — very loosely drawn from Matt Lauer — is done particularly well.  Is he the victim of an unfair smear of sexual harassment? Or is he just utterly clueless about his interactions? Or is it something more nefarious and awful? Or even something else?

I won’t spoil it but let’s just say that the show doesn’t take the easy way out.   The show, however, clearly tells us where it believes the line should be.  In one gripping scene, a target of harassment declares:

We are all just people who want to do our jobs, do good work.  So that’s what I’m gonna focus on… because I’d like to be known in this world for something other than f—ing ______, and I think I deserve that opportunity.

What happens next? Well, the show ends on somewhat of a cliff-hanger and that’s where the #MeToo movement is now.  A bit of a hiatus. Where do we go from here?

That script is yet to be written.  And there are several paths possible.  Here are two:

  • This pandemic serves to strengthen the #MeToo movement in time.   Employers will — more than ever — have every incentive to making sure the workplace is free from distractions and harassment.
  • Human Resources departments will be gutted in reductions in force and there won’t be as many people left to police the workplace.  The #MeToo movement stalls as workplace safety is deemed more important than “trivial” harassment claims.

Season 2 of The Morning Show — and the #MeToo movement — will be making an appearance later this year.

Three months ago, on January 22, 2020, when I uploaded my first coronavirus pandemic post (and being one of the first law blogs to post about it substantively), a few people asked me why I already writing about this.

In part, it was because I had been listening to Dr. Michael Osterholm, the director of the Minnesota’s Center for Infectious Disease Research and Policy.

I found him to be thoughtful and, if I’m being honest, more than a little scary at the time.   The pandemic was coming. It was inevitable. And we had to be prepared for it.

Over the last week, I’ve heard more lawfirms pontificating already about reopening businesses, giving lofty webinars, and, well, can’t we just all go back to work yet?

So, three months later, before you start thinking that we are all going to back to work at the same time anytime soon, I think it’s worth listening to Dr. Osterholm again.

He gave an in-depth interview with CNN on Wednesday.

Here are a few of the items I took as takeaways from his interview:

  • “The epidemiology tells me that this first wave of illness is, in fact, just the beginning of what could very easily be 16 to 18 months of substantial activity of this virus around the world, coming and going, wave after wave.”
  • “You might say we’re in the second inning of a nine-inning game. We’ve got to consider how we’re going to prepare ourselves for the possibility that some of the cities that have already been hit hard will have peaks some months down the road that may be much larger in case numbers than we’re seeing right now.”
  • “There’s got to be an approach in the middle. I call it “threading the rope through the needle,” where we open our economy and everyday life in a way that is capable of rapidly detecting the emergence of new waves of infection. Then we do whatever we can again with physical distancing to limit the new infection’s spread.”
  • “So you have the possibility of at least 800,000 deaths in the US over the next 18 months. This is the number of deaths I’m expecting.”
  • “This virus could be in the air around infected people. It could be the same air we share and breathe. The more times you go into public spaces, the greater the likelihood you’re going to swap some air with somebody who has the virus and doesn’t even know it. Again, we have to be honest about that.”

It is a very sobering interview and again, for those that are trying to map out the next few weeks, we need to be thinking far longer than that.  Moreover, we have to think about a workplace that leans into the restrictions already in place.

So yes, think about “return to work” plans. Think about how you might do temperature checks, or antibody tests, or social distancing, or masks, or all of the above.  Connecticut may start to open up in June and even then, only in fits and starts. 

But temper that with the realization that the virus has its own schedule. It does not need to clock in or clock out. It is patient. And it does not care about your best intentions.

Three months in, this pandemic is still here.  Keep staying safe and healthy.

Let’s face it: Trying to keep up with all the pandemic-related employment rules released by the state only to see them modified again and again, is challenging to say the least.

And yet, the Safe Workplace Rules for Essential Employers have been modified yet again Tuesday night by the Department of Economic and Community Development, just two business days after they were already updated to ask masks as a requirement.

The modifications don’t just fix a typo, but significantly change what had been put in place over the weekend by reducing the need for employees to wear a mask at all times.

Effective immediately, in workplace settings where employees are working alone in segregated spaces (i.e. cubicles with walls, private offices, etc.), employees may remove their masks.

But, workers need to wear masks or face coverings “from the time they enter the building until the time they arrive at their cubicle/work station and at any time they are leaving their work station and moving around common areas (i.e. in hallways and stairwells, going to the restroom or break room, etc.).”

For employees working on congregate settings (i.e. open manufacturing floors, warehouses, areas open to the public, shared offices, or similar settings), those workers shall wear a face covering as above, as well as when they are at their work station.

The DECD also provided an important clarification for those working outside.  “Continuous wearing of masks is not required in outdoor workspaces where employees do not regularly come within six feet of other employees.”

Employers should obviously update their policies and practices to address this new rule.

Updated April 23, 2020 to reflect new EEOC guidance.

It seems clear now that we are far from the end to this pandemic. But, just as clearly, we are now reaching the end of the beginning of this pandemic.

We’ve been staying at home for several weeks and some other states are already considering loosening the restrictions.  Essential employees can still work but employer are asking questions about how best to keep the workplace safe.

One question that seems to be popping up: Can employers require antibody testing as a condition for employees returning to work?

The EEOC has made it clear that employers can institute testing given that the pandemic represents a “direct threat”.

As the EEOC stated in its most recent guidance:

Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.  The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings.  In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion.  These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.  At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.

So, as I’ve noted before, the EEOC has now said that employers can measure employees’ body temperature before employees begin a shift.

The EEOC has also updated its guidance last Friday to make it clear that the “ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety”.

(Update 4/23/20 – The EEOC has provided a further update on its site regarding such testing.  It provides the following:

An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.)

But as the Hartford Courant is quick to note this morning, while “Connecticut hospitals say antibody testing could help the state emerge from its COVID-19 crisis by indicating who is safe to return to work … experts warn of significant limitations.”

For example, “Doctors still can’t say for certain that antibodies provide protection against COVID-19, nor do they know how long any immunity might last. Meanwhile, false positives could undercut the tests’ value.”

As one Yale immunologist stated:

Right now there’s this idea that the antibody tests are going to be a panacea, they’re going to tell us who’s immune and who’s safe and ready to go back to work.  And unfortunately, the current tests, with the evidence we have, would not give that indication.

As Jon Hyman noted in his Ohio Employer’s Law Blog this morning as well, employers “should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.”

Indeed, I think employers are going to have to tread very cautiously for now.

Taking temperatures of employees sounds good in theory, but there is evidence that people may be asymptomatic.

Antibody tests right now suffer from the same deficiences; they may just not be reliable now.

Employers can still ask for return to work documentation from a physician but a doctor’s note may be tough to come by.  Employers should be flexible in these times and continue to track the expert guidance as this area continues to evolve.

The Commission on Human Rights and Opportunities recently announced that it will, upon request, extend the deadline for employers to provide sexual harassment prevention training by 90 days for new employees.

The deadline to complete such training is six months after their start date, absent an extension.

But employers should beware; the announcement has three specific caveats that greatly reduce the scope of this extension:

  • First, the extension of the training requirement will apply only to those employees who have been hired after October 1, 2019.  All training for existing employees must still (for now) be completed by the deadline.
  • Second, the extension is not automatic; rather, employers must e-mail a request to CHRO.questions@ct.gov.
  • Third, the employer must explain in the request why it was unable to complete the training requirement for those affected employees due to current COVID-19 restrictions.  The CHRO provides for examples such as “lack of access to technology including computer/the internet”, “illness of the employee” or “other unforeseeable circumstances”.

I’ve previously recapped the requirements for employers here.  But here are the two main points:

  • Employers of all sizes must give training to supervisors by October 1, 2020 (or within six months of their assumption of supervisory duties, after that time).
  • For employers with 3 or more employees, the training must also be given to all other employees also by October 1, 2020 (or within six months of hire, after that time.)

There’s no doubt that employers already have a lot on their plates but this requirement should not be overlooked in the months ahead. The extension is a very limited one and given the economic times, I don’t imagine there’s going to a lot of hiring anytime soon.

Governor Lamont late Friday issued new Executive Order 7BB, making it mandatory that everyone wear a mask or cloth face-covering in any public place where he or she is unable to maintain a safe social distance of at least six feet.

The EO goes into effect on Monday, April 20th at 8 p.m. and also applies to any means of transit, including ride-sharing.

The EO also requires DECD to update its safe workplace and safe retail store rules setting forth additional requirements for those settings.

Thus, late Friday, DECD issued new workplace rules (here) and new retail store rules (here). Both appear to be effective immediately and run until at least May 20, 2020.  The rules require masks for all employees and customers.

Specifically, in the workplace:

  • Each employee shall be required to wear a mask or other cloth material that covers his or her mouth and nose at all times while in the workplace.
  • Employers shall issue such masks or cloth face coverings to their employees. In the event an employer is unable to provide masks or cloth face coverings to employees because of shortages or supply chain difficulties, employers must provide the materials and CDC tutorial about how to create a cloth face covering, or compensate employees for the reasonable and necessary costs employees expend on such materials to make their own masks or cloth face covering.
  • Nothing in these rules 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.
  • If a person declines to wear a mask or cloth face covering because of a medical condition as described above, such person shall not be required to produce medical documentation verifying the stated condition.

The safe workplace rules mandate that employers “require all customers to wear cloth face coverings while on premises.”

Notably, these rules apply to the workplace; employees who are working from home now need not wear them while in their house.

This is consistent with the safe retail rules which also following similar rules:

  • Each employee shall be required to wear a mask or other cloth material that covers his or her mouth and nose at all times while a store is open to customers or as otherwise required under separate DECD workplace guidance.
  • Employers shall issue such masks or cloth face coverings to their employees. In the event an employer is unable to provide masks or cloth face coverings to employees because of shortages or supply chain difficulties, employers must provide the materials and CDC tutorial about how to create a cloth face covering, or compensate employees for the reasonable and necessary costs employees expend on such materials to make their own masks or cloth face covering.
  • Each retail facility shall require customers to wear a mask or cloth face covering while inside such retail facility, provided that no customer shall be required to wear a mask or cloth face covering if doing so would be contrary to his or her health or safety due to a medical condition, the customer is under two years of age, or is an older child if the parent, guardian or person responsible for the child is unable to place the mask safely on the child’s face.
  • If a person declines to wear a mask or cloth face covering because of a medical condition as described above, such person shall not be required to produce medical documentation verifying the stated condition.

Essential employers that are still maintaining operations should immediately move to supply employees with masks or provide supplies to the employees to make them at home.

Yesterday, my colleague Peter Murphy and I set out to write a summary of one of Connecticut’s quiet success stories during this pandemic — the Shared Work program from the Connecticut Department of Labor.

You can find the entire article here.

What is this little program that has served an outsized role the last few weeks?

It is a program run by the Connecticut Department of Labor, and is described as:

providing an alternative to layoffs for employers faced with a temporary decline in business. Rather than laying off a percentage of the workforce to cut costs, an employer may reduce the hours and wages of all or a particular group of employees. The employees whose hours and wages are reduced can receive partial unemployment insurance benefits to supplement their lost wages. These partial benefits are made possible through special eligibility regulations governing the Shared Work Unemployment Compensation Program.

One of the benefits of this program is that employees on this program can receive more benefits than if their employers just reduce their hours.  Higher-income earners, in particular, do much better on the program because they would otherwise be locked out of the partial unemployment program due to their salary.

The paperwork is relatively straightforward and the DOL is approving of these applcations in less than the 30 day normal waiting period.  We had one client that had their program approved in less than two weeks.

Over the last few weeks, I’ve heard directly from the DOL regarding some suggestions on how to fill out the application. Here are a few of their tips:

  • Make sure the application is complete; no skipped questions.
  • For Question 10: Make sure to list the percentage of reduction as 10%-60%. The specific percentage for each employee will then be set forth in the employee list at the end of the application.
  • For Questions 12 and 13 (Fringe benefits and Seniority): Be sure to answer “yes” to these questions. If an employer is removing benefits, the application will be denied.
  • For Question 17, the CTDOL only needs an estimate of how many layoffs are being avoided. As to the inclusion of a “Participation List”, the CTDOL asks to include “all employees you believe may need to be reduced. We do not put them on Shared Work until the employer submits their first payment request, due to a reduction of work. If they never receive a reduction then we do nothing.”
  • Importantly, the CTDOL reminds employers that “the plan is flexible, reduction of work can change week to week and from unit to unit as long as it stays between the 10%-60% reduction. For the employers that apply we will honor the effective date on the plan and will enter back weeks if necessary. Once they receive their approval packets by mail they will receive all of the information needed to begin the program and to submit payment requests.”

If you’re interested in this program, the CTDOL has a good landing page here or feel free to reach out to your counsel to discuss the benefits (and downsides) to this program.

News flash: There’s life beyond the COVID-19 pandemic!

In fact, yesterday, the Connecticut Supreme Court released an entirely non-COVID-19 related decision on the topic of “constructive discharge”.

I’ve talked about constructive discharge in prior posts, but the new case clarifies nearly two decades of jurisprudence in the area.  Despite the lowering of the bar for employees to raise such claims, employees still have a significant burden to overcome.

First off – why is this important? Well, in discrimination cases, an employee has to show an “adverse employment action”.  Normally, that’s a termination of employment.  But sometimes employees quit.  Most of the time, that’s not enough to satisfy an “adverse employment action”.   But in some cases, the employees say that they were compelled to resign — in other words, they were “constructively discharged”.

The Supreme Court, in Karagozian v. USV Optical, Inc.  now says that to prove a constructive discharge, a plaintiff must allege three things:

  1. the employer intentionally created the complained of work atmosphere;
  2. the work atmosphere was so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign; and,
  3. the plaintiff in fact resigned.

But what it does not require is an allegation that that the employer intended to force the employee to quit.  Rather, an employee need only allege that the employer intended to create the conditions that the plaintiff claims compelled the employee to quit.

The court said that confusion lied with some language from a prior decision. And to that language, the court said:

To clarify the intent element of a constructive discharge claim for future cases, the phrase under examination—‘‘[c]onstructive
discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable
work atmosphere that forces an employee to quit involuntarily’’—should be understood to refer to the employer’s intent to create the intolerable work atmosphere itself

The court went on to state: “This standard does not require that the plaintiff allege facts to show that the employer intended to force the employee to resign, only that a reasonable employee would feel compelled to resign.”

It goes on to state:

The standard contains a subjective inquiry (did the employer intend to
create the working condition) and an objective inquiry (the impact the working conditions would have on a reasonable person). To evaluate the working conditions, we evaluate whether a reasonable person in the employee’s shoes would have felt compelled to resign.

Still, the Court said the “plaintiff’s complaint fails as a matter of law to allege that
the defendant created a work atmosphere so difficult or unpleasant that a reasonable person in the plaintiff’s shoes would have felt compelled to resign.”

The case will no doubt become the standard bearer for constructive discharge cases.  Will this lead to more cases being filed? We’ll see, but the fact that the court still dismissed the case after lowering the standard should give employers some reason to be optimistic.