On July 8, 2020, the United States Supreme Court (“SCOTUS”) held in a 7-2 decision that employers may exclude birth control from their health care plans if they have moral or religious oppositions to contraception. This decision upheld the Trump Administration’s November 2018 final rules which provide exceptions to the Affordable Care Act (“ACA”) mandate requiring covered employers to provide women with contraceptive coverage with no cost sharing.

By way of background, the final rules provide exemptions to the contraceptive mandate for religious organizations (such as churches) and employers with sincerely held religious beliefs, including publicly traded employers. The final rules also provide a similar “moral exemption” for employers—including non-profit and for-profit entities with no publicly traded components—with “sincerely held moral” objections to providing some or all forms of contraceptive coverage. These final rules were enjoined by lower courts prior to the appeal to SCOTUS by the Trump Administration and an organization called Little Sisters of the Poor Saints Peter and Paul Home.

SCOTUS upheld the Trump Administration’s final rules on the grounds that ACA grants government agencies the authority to promulgate religious and moral exemptions. Specifically, the Court stated that the Health Resources and Services Administration had “broad discretion to define preventative care and screenings and to create religious and moral exemptions.” Two concurring members of the Court’s Majority noted that the decision was made solely on this basis and that the final rules may be subject to a successful challenge under the “arbitrary and capricious” test for administrative rules.

Although this decision provides an expanded exemption for employers nationally, Connecticut’s exemptions are far narrower. For insured plans in Connecticut, there is a mandate to cover contraceptives and only religious employers and certain hospital and health care centers owned by religious organizations that object to such coverage are exempt. Religious employers include a church, an elementary or secondary school which is controlled or operated or principally supported by a church, as well as a church-controlled tax-exempt organization.

On Monday, June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discharging or taking other adverse action against an employee because the employee is gay or transgender. This is a landmark decision as more than half the states did not recognize such protections.

At the outset of its opinion, the Court’s majority stated, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The Court reached its holding based on the plain meaning of Title VII’s “because of sex” language. Specifically, the Court reasoned when an employer intentionally treats an employee differently because of the employee’s sexual orientation or gender identity, the employer is discriminating “because of sex.” In reaching its conclusion in this manner, the Court rejected the arguments from the employers and the Court’s minority that Title VII as written “does not prohibit employment discrimination because of sexual orientation.”

Although this decision will have a significant impact nationally, it will have a minimal effect on Connecticut employers. Connecticut’s antidiscrimination laws have protected employees from discrimination based on sexual orientation and gender identity or expression for many years. Employers should review their anti-discrimination and anti-harassment policies to ensure that they specifically prohibit discrimination and harassment based on sexual orientation, gender identity and gender expression.

As a result of the COVID-19 crisis, the Connecticut Commission for Human Rights and Opportunities (“CHRO”) has announced it will provide extensions of time for certain deadlines for COVID-19 related reasons.

Sexual Harassment Training

The CHRO posted on its website that it will consider a 90-day extension of the deadline for employers to provide sexual harassment training to new employees hired on or after October 1, 2019. We confirmed with the CHRO that this extension does not apply to employees hired before that date. The current deadline to train new hires is six months after their date of hire. In seeking the extension, the employer must explain how COVID-19 issues prevented it from providing training to their new hires. Examples of restrictions preventing an employer from providing training include a lack of access to technology including computer/the internet, illness of the employee or other unforeseeable circumstances.

The CHRO’s announcement is available here.

Answers to CHRO Charges, Mandatory Mediation Conferences, Fact Finding Conferences and Document Requests

The CHRO may also provide 30-day extensions or continuances to the parties for response deadlines and conferences. Similar to the training deadline extension, the request must be COVID-19 related. Upon request, the extensions are as follows:

  • Answers. Employers will be provided an additional 30 days to submit answers and Schedule A responses. Generally, employers may only obtain to a 15-day extension.
  • Mandatory mediation conferences. The CHRO will provide a 30-day continuance for mandatory mediation conferences.
  • Fact finding conferences. The CHRO will also provide a 30-day continuance for fact finding conferences scheduled on a date where in-person meetings are prohibited. Additional continuance requests will be decided on a case-by-case basis and should be granted for reasons such as non-essential business closure, healthcare entities whose priority is COVID-19, illness, quarantine, or child or dependent care due to COVID-19. If there are further continuance requests, a CHRO investigator can choose to proceed with available parties/witnesses and follow up or reschedule parties and/or witnesses for COVID-19 related reasons.
  • Document requests. Parties will also receive a 30-day extension to comply with document requests. Additional requests will be decided on a case-by-case basis and granted for reasons such as documents that need to be copied and are not available electronically, administrative, clerical or secretarial staff shortages, non-essential business closure, health care entities whose priority is COVID-19, illness, quarantine, or child or dependent care due to COVID-19.

The CHRO’s announcement is available here.

As always, if you have any questions, please contact us.

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

What is the program?

The Shared Work Program is administered by the Connecticut Department of Labor (“CTDOL”). It is designed to save jobs and retain workers by offering an alternative to layoffs. It allows employers to temporarily reduce an employee’s hours and supplement lost wages with partial unemployment benefits.

What are the requirements?

  • Employers must have at least two permanent part or full-time employees.
  • Participation should be in lieu of layoffs and not used for seasonal separations.
  • Reduction of work and wages must be between 10 and 60 percent.
  • Employers cannot eliminate or reduce any fringe benefits during the duration of the approved plan. Fringe benefits include, but are not limited to, health insurance, retirement benefits, paid vacation and holidays, sick leave, seniority accrual and similar advantages of employment.
  • Employees must be able to work and available for additional hours of work with the participating employer.
  • Affected employees must certify that a written copy of the plan, or a summary, was made available to them for inspection and comment for at least 7 days.

What are the benefits?

Employers:

  • Are better able to ensure their employees are in a position to resume working following the economic downturn.
  • Can reduce employees’ work between 10 and 60 percent.
  • Can avoid the expense of recruiting, hiring and training new employees.
  • Can prevent their employees from avoiding the hardships of full unemployment.

Who can apply?

Any Connecticut employer whose taxes or reimbursement payments are currently up to date is eligible to apply for the program.

How do employers participate?

Employers must submit an application to the CTDOL either by facsimile or e-mail. The application can be found here. The CTDOL will generally issue a decision within 30 days.

How does the program work?

If the application is approved, the plan will begin on a Sunday and expires on a Saturday approximately six months thereafter. During the six-month period, eligible employees work a reduced number of hours in the workweeks and receive a portion of their weekly unemployment compensation based on the percentage of the reduction.

For example:

Employee A works 40-hours per week and earns $20 an hour in regular pay. Under the program, Employee A’s hours are reduced by 50 percent.

What if the employee works more than their reduced hours?

Employees cannot receive Shared Work Program benefits in any week when he or she workers more than their reduced hours unless there is a corresponding modification to the plan.

Who does the plan cover?

The plan can cover the employer’s total workforce of permanent part or full-time employees, a particular shift, or a specific unit.

What if the employee uses paid time off?

Employees must work at least one day during a Shared Work week in order to be eligible for payment under the program. Therefore, if an employee chooses to take five days of paid time off during a work week the employee cannot used Shared Work to cover one or more of the days missed.

What if there is a union?

Employers can still participate in the Shared Work program provided that their shared work plan is approved, in writing, by the union’s representative.

Can an application be denied?

Generally, the CTDOL rejects applications for good cause. Good cause includes, but is not limited to, failure to comply with the assurances given in the plan, unpaid CTDOL taxes, unreasonable revision of productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the plan, and violation of any criteria on which the approval is based.

Can a denial be appealed?

No, reasons for rejection or revocation of a plan are final. However, the employer may submit another application for consideration and the CTDOL will make a determination based on the new data submitted.

¹ This situation is a hypothetical example. Any benefit or award of benefits will be determined by the CTDOL and based on that current maximum weekly benefit rate in effect at the time

As the Coronavirus continues to spread nationwide, we recognize that health care providers and other organizations (“Organizations”) are dealing with the virus on the “front lines.” We have provided the following advice for the many growing concerns surrounding your Organizations.

Privacy Considerations for Health Care Providers

Organizations need to ensure that they continue to observe legal and ethical obligations with respect to the privacy of patients, colleagues and employees including, but not limited to, their obligations under the Health Insurance Portability and Accountability Act (“HIPAA”). As such, you should observe the following:

  • Do not disclose an individual’s protected health information (“PHI”) to the media. During this crisis, you may receive media inquiries related to confirmed or suspected cases of the virus. Organizations generally may not disclose an individual’s PHI to the media even during a public health emergency unless you have written authorization.
  • Take care in responding to inquiries from “Public Health Authorities.” Under HIPAA, covered organizations are permitted to disclose needed PHI without individual authorization to “Public Health Authorities.” Such authority is an agency or authority of the United States government, a State, a territory, a political subdivision of a State or territory, or Indian tribe that is responsible for public health matters as part of its official mandate, as well as a person or entity acting under a grant of authority from, or under a contract with, a public health agency. For example, the Centers for Disease and Prevention Control (“CDC”) or the Connecticut Department of Health are Public Health Authorities and you may disclose PHI to them without an individual’s authorization. Therefore, confirm that the purported entity requesting or seeking information qualifies as a Public Health Authority or you may violate HIPAA.
  • Take care in disclosing PHI to an individual’s family, friends and others involved in their care. Generally, organizations may disclose an individual’s PHI to his or her family members, relatives, friends or other persons identified by the individual as involved in his or her care with verbal permission from the individual or without such permission, if the Organization can reasonably infer the person does not object. In this situation, organizations should take care to only disclose to family and friends who have been identified by the individual where possible. If the individual is incapacitated or not available, Organizations may share relevant information with family, friends, or others involved in the individual’s care or payment for care if it determines, based on professional judgment, that doing so is in the best interest of the patient.
  • Take care in notifying others of potential exposure. There will inevitably be circumstances under which an individual who tests positive for the Coronavirus may have exposed others to the virus. You may wish to notify an individual not named by the patient of the potential exposure. In this situation, the Organization may disclose the infected individual’s PHI to a person if there is a serious and imminent threat to the person. HIPAA laws defer to the professional judgment of health professionals in determining the severity of the threat to health and safety. However, please note that these determinations are evaluated on a case-by-case basis and, although the Coronavirus is serious, not every situation may meet the standard for disclosure. Currently, Organizations are not obligated to notify individuals of potential exposure.
  • Encourage employees to avoid gossiping and/or discussing PHI. Remind your employees of key HIPAA rules such as role-based access, confidentiality, and the authorized uses and disclosures of an individual’s PHI and that following such rules is critical in this time.

Safety In The Workplace

Organizations should be aware that all Occupational Safety and Health Administration (“OSHA”) standards apply. Of critical importance is OSHA’s general duty clause, which requires Organizations to provide a safe and healthy workplace. Further, Organizations should follow OSHA’s standards regarding bloodborne pathogens, hazard assessments and respirators. OSHA’s bloodborne pathogens standards prescribe the safeguards to protect workers against the hazards associated with the pathogens and can be found here. OSHA’s hazard assessments provide guidance on what personal protective equipment (“PPE”) should be used. Lastly, OSHA’s respirator standards apply to those who use masks, which are considered respirators. Organizations should ensure that anyone wearing or who is to wear a respirator can wear it properly. OSHA has provided general guidance on hospitals and respirators, which can be found here and also guidance in light of the Coronavirus, which can be found here.

Work Restrictions For Healthcare Personnel Exposed to Coronavirus

The CDC has also provided guidance for organizations on how to assess risk, monitor, and set work restrictions for Healthcare Personnel (“HCP”) who have been exposed to the Coronavirus. It has provided a table which provides recommendations for work restrictions and monitoring for COVID-19 symptoms depending on the severity and context of the exposure. In making assessments, the CDC recommends that Organizations take a conservative approach.

Epidemiologic risk factors Exposure category Recommended Monitoring for COVID-19 (until 14 days after last potential exposure) Work Restrictions for Asymptomatic HCP
Prolonged close contact with a COVID-19 patient who was wearing a facemask (i.e., source control)
HCP PPE: None Medium Active Exclude from work for 14 days after last exposure
HCP PPE: Not wearing a facemask or respirator Medium Active Exclude from work for 14 days after last exposure
HCP PPE: Not wearing eye protection Low Self with delegated supervision None
HCP PPE: Not wearing gown or glovesa Low Self with delegated supervision None
HCP PPE: Wearing all recommended PPE (except wearing a facemask instead of a respirator) Low Self with delegated supervision None
Prolonged close contact with a COVID-19 patient who was not wearing a facemask (i.e., no source control)
HCP PPE: None High Active Exclude from work for 14 days after last exposure
HCP PPE: Not wearing a facemask or respirator High Active Exclude from work for 14 days after last exposure
HCP PPE: Not wearing eye protectionb Medium Active Exclude from work for 14 days after last exposure
HCP PPE: Not wearing gown or glovesa,b Low Self with delegated supervision None
HCP PPE: Wearing all recommended PPE (except wearing a facemask instead of a respirator)b Low Self with delegated supervision None

HCP=healthcare personnel; PPE=personal protective equipment

aThe risk category for these rows would be elevated by one level if HCP had extensive body contact with the patients (e.g., rolling the patient).

bThe risk category for these rows would be elevated by one level if HCP performed or were present for a procedure likely to generate higher concentrations of respiratory secretions or aerosols (e.g., cardiopulmonary resuscitation, intubation, extubation, bronchoscopy, nebulizer therapy, sputum induction). For example, HCP who were wearing a gown, gloves, eye protection and a facemask (instead of a respirator) during an aerosol-generating procedure would be considered to have a medium-risk exposure.

Screening of Visitors

Governor Ned Lamont has issued several Executive Orders in response to the pandemic, including Executive Orders 7 and 7A, which address visitors to all Connecticut nursing home facilities, residence care homes, or chronic disease hospitals. Pursuant to Executive Order 7A, all Connecticut nursing home facilities, residence care homes or chronic disease hospitals must impose a complete ban on all visitors for a period of thirty days until April 13, 2020. However, there is an exception for reasonable access to the following individuals provided that certain criteria is met:

  •  First responders, including emergency medical services, law enforcement, firefighting and other emergency management personnel;
  • Family members, domestic partners or other persons designated by a patient only when the facility’s Medical Director, a licensed physician or advanced practice registered nurse has determined such patient to be at the end stage of life with death being imminent;
  • Any person authorized by law to oversee or investigate the provision of care and services; and
  • Service providers who are required to do maintenance or repair necessary without delay for the facility’s continued operation.

Before such visitor can be permitted entry, the Organization must first perform a risk screening of the visitor for Coronavirus, with the use of appropriate PPE in accordance with the CDC guidelines, if necessary. The risk screening should include, but not be limited to, recent travel history, contact with a person presumed or confirmed positive for Coronavirus, a fever of 100 degrees or greater, coughing, sore throat, sneezing, shortness of breath and recent travel by airplane. Organizations should deny entrance to any visitor who does not pass the screening or who it determines, in its discretion, meets one of the criteria described above.

Temporary Reciprocity of Health Care Practitioner Licenses

On March 23, 2020, the Connecticut Commissioner of the Department of Public Health issued an order permitting physicians, nurses, respiratory care practitioners, emergency medical services personnel and other health care practitioners who are licensed in another state to provide temporary assistance in Connecticut for a period of 60 days. The order is subject to the following conditions:

  • No practitioner may provide services beyond the scope of practice permitted under Connecticut law relating to the applicable profession; and
  • Each practitioner must maintain malpractice and other applicable insurance.

Last night, Governor Lamont issued Executive Order 7H which requires all non-essential businesses to reduce their in-person workforce by 100% on or before 8pm on Monday, March 23, 2020 through April 22, 2020, unless the Order is subsequently modified. Executive Order 7H specifically states that businesses must, to the maximum extent safely possible, use telecommuting and work-from-home practices.

Executive Order 7H designates that essential businesses are not subject to the in-person workforce reduction. Such essential businesses include the Department of Homeland Security’s 16 critical sectors. These 16 sectors are: the chemical sectorcommercial facilities sectorcommunications sectorcritical manufacturing sector (including primary metals, machinery, electrical equipment, appliance and components, and transportation equipment manufacturing), dams sectordefense industrial base sectoremergency services sectorenergy sector, financial services sectorfood and agriculture sectorgovernment facilities sectorhealthcare and public health sector, information technology sectornuclear reactorsmaterials, and waste sector, transportation systems sector, and water and wastewater systems sector. The Order further includes many different areas of manufacturing, biotechnology development, mail and shipping services, legal and accounting services, vendors of essential services and goods necessary to maintain the safety, sanitation, and essential operations of residences and other essential businesses, child care services, and many others. The full list of essential workplaces can be found here.

The list of exemptions is, at the moment, broad. For example, manufacturers who produce medical device components or are in the aerospace supply chain are exempt from the order. Still, the Order in some cases implies a distinction between types of workers; for example, manufacturing/production workers are specifically called out as exempt under the general defense industrial base exemption. Manufacturing facilities whose office workforce can work remotely should do so to the extent safely possible.

Executive Order 7H also requires that the Commissioner of the Department of Economic and Community Development develop bidding guidance on essential businesses by 8pm on Sunday, March 22, 2020. The foregoing analysis is subject to change on the basis of that guidance, when issued. We are monitoring to ensure that we can share these critical updates with you as expeditiously as possible.

We at Carmody are here to support you and your business during this difficult time. Should you have questions or concerns, please contact your regular Carmody attorney or any of our team members below:

Thomas R. Candrick, Jr.
(203) 784-3103; tcandrick@carmodylaw.com

Joseph Dornfried
(203) 575-2621; jdornfried@carmodylaw.com

Matthew H. Gaul
(203) 784-3106; mgaul@carmodylaw.com

Joseph L. Kinsella
(203) 575-2645; jkinsella@carmodylaw.com

Mark J. Malaspina
(203) 575-2625; mmalaspina@carmodylaw.com

Ann H. Zucker
(203) 252-2652; azucker@carmodylaw.com

Wesley D. Cain
(203) 784-3105; wcain@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Kevin G. Palumberi
(203) 252-2692; kpalumberi@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Yesterday, March 18, 2020, Congress passed, and President Trump signed into law, the Families First Coronavirus Response Act, that provides many American workers up to 12 weeks of paid FMLA leave and two weeks of paid sick leave for certain reasons related to COVID-19. Employers are required to pay these amounts to eligible employees, and employers would be eligible for a tax credit on the amounts paid. We have included below some basic information on the new law.

Emergency Family and Medical Leave Expansion Act

What is the Effective Date? The new law is effective not later than 15 days after it is enacted and sunsets on December 31, 2020.

Who is a Covered Employer? An employer with fewer than 500 employees. The DOL has authority to issue regulations to exempt small businesses with fewer than 50 employees when the law’s requirements would jeopardize the viability of the business.

Who is an Eligible Employee? Any full-time or part-time employee that has been on the employer’s payroll for 30 days.

What are the Reasons for FMLA leave? An eligible employee may take FMLA leave under this Act to care for a child (under 18) of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a coronavirus related reason, and the employee is unable to work or telework.

What Portion is Paid Leave? The first 10 days of leave may be unpaid, but an employee can choose to substitute accrued vacation leave, personal leave, or other medical or sick leave during the leave. After 10 days, employers must pay for FMLA leave (only for the reason above) at no less than two-thirds the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled to work. The FMLA benefit is capped for an individual at $200 per day or $10,000 in the aggregate.

Does the Employee Have to Be Restored to their Position? An employer must return the employee to the same or equivalent position upon their return to work. There is an exception to this requirement for employers with fewer than 25 employees if (subject to certain conditions) the employee’s position does not exist after FMLA leave due to an economic downturn or other operating conditions that affect employment caused by a public health emergency during the period of leave.

Emergency Paid Sick Leave Act

What is the Effective Date? The Act is effective not later than 15 days after it is enacted and sunsets on December 31, 2020.

Who is a Covered Employer? Employers with fewer than 500 employees must provide employees with two weeks of paid sick leave. The DOL has the authority to exempt small businesses with fewer than 50 employees when the requirements would affect the viability of the business.

What are the Reasons for Sick Leave? An employee may take sick time if unable to work or telework for one of the following reasons related to COVID-19:

Employee is subject to a federal, state, or local quarantine or isolation order;

• Employee is subject to a federal, state, or local quarantine or isolation order;

• Employee has been advised by a healthcare provider to self-quarantine;

• Employee is experiencing symptoms and seeking a medical diagnosis;

• Employee is caring for an individual who (#1) is subject to quarantine or who (#2) has been advised to self-quarantine;

• Employee is caring for the child of such employee if the school or childcare has been closed; or

• Employee is experiencing any other substantially similar condition as designated by HHS.

What Amount Must be Paid? Employers must pay eligible employees the following:

• Full-time employees: 80 hours at their regular rate of pay. However, when caring for a family member (last three bullets above), sick leave is paid at two-thirds the employee’s regular rate.

• Part-time employees: the same approach as full-time employees, except the number of hours that the employee works, on average, over a two-week period.

The sick pay is capped at $511 a day ($5110 aggregate) for self-care (items 1-3 above) or $200 a day ($2000 aggregate) for care for others (items 4-6 above).

Are the Two Weeks of Paid Sick Leave in Addition to PTO that An Employer Provides? It appears so as the law states that paid sick leave shall not diminish the rights an employee has under any other federal, state, or local law, under a collective bargaining agreement, or an existing employer policy. Also, an employer may not require an employee to use other paid leave before the employee uses the paid leave under this bill.

Are there any Retaliation Provisions? The law includes anti-retaliation protections for employees and provides that the failure to pay sick pay is treated as a violation of a failure to pay minimum wage.

Tax Credits for Emergency Paid Sick Leave and Family and Medical Leave

The new law provides a refundable tax credit for employers equal to 100 percent of paid sick leave wages and 100 percent of paid FMLA. The tax credit is allowed against the employer portion of Social Security taxes. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit is refundable to the employer. Sick pay or FMLA pay are not wages for the purposes of the employer portion of FICA.

We are here to help you during this difficult period of uncertainty. Please feel free to contact any member of our Labor & Employment team.

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

First and foremost, we hope everyone is doing well and taking all appropriate measures to safeguard the health and safety of employees, clients, visitors and others with whom you do business. You should be closely monitoring developments at the national, state and local level, communicating with your employees regularly, and making necessary adjustments in how you conduct your business. That is what we are doing at Carmody.

We know that many of you have received information about a Bill that Congress is expected to pass that would provide paid sick leave and paid FMLA for employees and that would provide a tax credit for employers. The Bill has been passed by the House and is expected to be passed by the Senate and signed into law as early as today. As soon as that occurs, we will send an e-alert summarizing the new requirements.

In the meantime, our attorneys have been fielding many questions from clients about a number of issues related to COVID-19. Here are some of the topics we have been addressing and are prepared to assist you with should you have any questions:

-Privacy Issues Related to Medical Inquiries, Testing and Sharing Information
-Implementing and Planning Reductions in Force
-Possible WARN Act Obligations
-Telecommuting/Remote Work Issues
-Discrimination and ADA Issues
-Unemployment Compensation, Furloughs, Shared Work and Partial Unemployment
-COBRA/Continuation of Benefits for Furloughed Employees
-Use of PTO, Sick Leave, FMLA and other leave laws and policies
-Wage and Hour Issues
-Labor Law Issues/Duty to Bargain
-OSHA/Workplace Safety Obligations
-Workers’ Compensation Issues
-Immigration Issues
-Imposing Travel Restrictions
-Social Distancing and Workplace Hygiene Policies
-First Amendment Issues
-Contractual Obligations/Force Majeure Issues

We are here to help you during this difficult period of uncertainty. Please feel free to contact any member of our Labor & Employment team.

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

We have received many requests from clients on how to handle the various issues in the workplace stemming from the COVID-19 (the “Coronavirus”), including how and what to communicate to employees.  In response to the many requests, we have developed the following points you should be prepared to address with your employees.

While the situation is rapidly evolving, you should be prepared to discuss:

  1.  you have been closely following the developments of the pandemic, including any declarations of a state of emergency by the President, the Governor and the World Health Organization,
  2.  you are monitoring school closures,
  3. your primary goal is the health and safety of your employees, and
  4. you are planning for potential disruptions to your business, including any contingency plans such as employees working from home for temporary or extended periods.

Policies and Specific Measures

In addition, you should be prepared to discuss any policies and specific additional measures your company is implementing to respond to the pandemic.  Below is a summary of the common issues that employers are dealing with.

Sick Employees

You should encourage all employees who are feeling sick to stay home.  Employees should not report to work if they are experiencing a fever, cough, sore throat, runny nose, body aches, headaches, chills and/or fatigue.  You should inform your employees that anyone who reports to work with these symptoms will promptly be sent home.  Further, employees who have or may have been exposed to the virus or live with someone who has or may has been exposed to the virus, should be encouraged to stay home for at least 14 days.  Employees should be encouraged to use their reasonable judgment and rely on the advice of medical professionals in determining whether they have been exposed.

Meetings

In-person meetings of 10 or more people should be strongly discouraged.  If you have the technological capability, employees should be encouraged to use company video conferencing software and/or video conference rooms to conduct meetings.  If you allow non-employees to use your premises or conference space, you should consider disallowing this practice.  You should also strongly consider postponing or cancelling all nonessential activities until a later date.

Travel

All nonessentials travel such as conferences and other forms of traveling regularly done for your business outside the state or country should be avoided, if possible.  Anyone who travels to an affected area, particularly a Level 3 area under the Centers for Disease Control and Prevention (“CDC”), should not be allowed to return to work until he or she has quarantined for at least 14 days.  The date of quarantine should begin on the first day that the employee returns from the affected area.  You should consider additional quarantines depending on the circumstances of travel or exposure, on a case-by-case basis.  You should request that visitors fill out a form disclosing recent travel and potential exposure.

Sanitizing the Workplace

We recommend that you place hand soaps and antibacterial sanitizers in common areas.  Following a report of employee exposure, you should have your business premises cleaned thoroughly to prevent possible transmission.

Working From Home

One of the most pressing concerns is the possibility of temporary or extended closures and the necessity of employees working from home.  Below are some key measures to consider regarding attendance and expectations for hours worked:

  1. Unless otherwise notified, normal attendance and leave policies should remain in place.
  2. Hourly non-exempt employees who are permitted to work from home should be advised to keep accurate records of all hours worked and reminded that they will be paid only for hours worked.
  3. Exempt employees who are permitted to work from home should be paid their full salary if they are working. If there are days that the employee cannot work, you should apply your leave policies and require exempt employees to use available leave time.

If capable, employees should be given the necessary equipment to work from home such as computers, iPads, tablets, etc.  Remind your employees to protect this equipment and to keep it sanitary to prevent possible transmission upon return.  You should also make available IT services so your employees can continue to work without interruption.

School Closures

The rapid spread of the Coronavirus has led to school closings at every level of education.  Employees may want to take time off as a result.  Employees should be advised that the attendance and leave policies remain in place and that they are required to use applicable leave if they are not working.  Exceptions to your leave policies should be made on a case-by-case basis considering all of the circumstances.

Unemployment

Employees are eligible for unemployment in certain circumstances.  Specifically, employees are eligible if they are asymptomatic for Coronavirus, but you require them to be quarantined and the employee is not working from home and also if they are temporarily laid off.  Employees are currently unable (absent a legislative change to the unemployment compensation system) to collect if they voluntarily decide to stay home (e.g., for fear, childcare, etc.)

Conclusion

We are continuing to monitor the developments associated with the pandemic and will continue to provide updates on best practices, as necessary.  Employers are encouraged to continue to exercise caution in maintaining a healthy and safe workplace.  If you have any questions, please contact one of the Labor and Employment Team members below.

If you have any questions, please contact any member of the Carmody Labor and Employment Practice Group for more information:

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Dear Clients,

We have heard from many of you about the ever-changing employment issues created by the COVID-19 pandemic and the effect it is having on your businesses. We are grateful that you have turned to us for advice and guidance, and we will continue to be here for you. We have prepared a separate e-alert on our suggestions on what employers should do now. We also sent an e-alert recently to our school clients, and it is linked here because the information may be applicable for employers generally.

As we monitor the evolving COVID-19 developments, we wanted to let you know what we are doing to assure you of our continued availability. Should any of our office locations close, all of our attorneys have the ability to work remotely, without interruption. To protect our staff, clients and visitors, our firm has limited nonessential business travel, restricted return to work for individuals who may have been exposed to the virus or are experiencing symptoms, and implemented sanitizing products and policies. We are also closely monitoring the guidance issued by the CDC, WHO and other federal, state and local authorities.

Should you have any questions or need any advice, please do not hesitate to contact us. For your convenience, here is the contact information, including cell phone numbers, for the heads of our Employment Team:

Chuck Stohler
(203) 575-2626; (203) 592-7818; cstohler@carmodylaw.com

Giovanna Weller
(203) 575-2651; (203) 217-6634; gweller@carmodylaw.com

Nick Zaino
(203) 578-4270; (203) 558-5111; nzaino@carmodylaw.com

Most importantly, we wish you, your family and your workplaces continued good health and safety.