Under Governor Lamont’s Latest Executive Order, Travelers from “Hot Spot” States Exempt from Self-Quarantine if they Meet Certain Testing Requirements

Under prior Executive Orders, travelers arriving in Connecticut from “hot spot” states are required to self-quarantine for a period of 14 days from the time of last contact with the hot spot state.

Under newly-issued Executive Order No. 9B, an affected traveler is exempt from the self-quarantine requirement if he or she has had (i) a test for COVID-19 in the 72 hours prior to arrival in Connecticut, (ii) the result of such COVID-19 test is negative, and (iii) the affected traveler submits written proof of the negative test result to the Commissioner of Public Health or his or her designee. These changes take effect after Friday, 9/18 12:01 a.m. This will be welcome news for Connecticut employers who have been grappling with issues (including FFCRA issues) that arise when employees are required to self-quarantine following travel to many popular domestic travel destinations. Please see Executive Order 9B for more information.

DOL Issues Revised FFCRA Regulations in Response to New York Federal Court’s Decision

The U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) that will take effect on September 16, 2020. These regulations were revised in response to a federal court’s decision on August 3, 2020 that invalidated various DOL regulations interpreting the FFCRA. For more information regarding the requirements of FFCRA, see our previous alerts here and here.

DOL Reaffirms the Work Availability Requirement

The DOL reaffirmed its position that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) may be taken only if the employer actually has work available from which an employee can take leave. In other words, the qualifying FFCRA reason must be the “but-for,” or sole reason that the employee is not working. The regulations logically explain that if there is no work for an employee to perform due to the worksite being closed (temporarily or permanently) or because the employee has been furloughed, then the employee is not entitled to paid leave under FFCRA because the qualifying reason could not be the “but-for” cause of the employee’s inability to work. That being said, the DOL emphasized that its interpretation does not permit an employer to avoid granting FFCRA leave by simply by claiming it lacks work for that employee. And remember that FFCRA contains an anti-discrimination/anti-retaliation provision!

Health Care Provider Exclusion is Narrowed

Employers may elect to exclude certain “health care providers” from leave benefits under the FFCRA. The original regulation, which the federal court found invalid, defined health care providers broadly as anyone employed at any doctor’s office, hospital, health care center, clinic, medical school and more.

The DOL has now revised the definition of “health care provider” to specifically include two categories. The first category is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

The second category includes individuals who provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” This category includes nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services and/or those who are otherwise integrated into and necessary to the provision those services.

The DOL has narrowed the original definition by making it clear that a person is not a health care provider merely because his or her employer provides health care services. In other words, employers may not, for example, exempt building maintenance staff, human resources personnel, IT professionals, records managers, billers and food services workers as health care providers, even if they work at a health care facility.

Changes to Intermittent Leave Requirements

Pursuant to the original regulations, intermittent leave under FFCRA was permitted in limited circumstances and subject to employer consent. The regulations continue to provide that an employee who is teleworking may take intermittent leave for any of the qualifying reasons as long as the employer consents. With respect to the employees who report to an employer worksite, however, the employee may only take intermittent leave when the employee satisfies the childcare qualifying reason and obtains employer consent. There is one key exception. The DOL has stated that where an employee’s child is attending a hybrid school schedule and is required to learn remotely on alternating days, each of those days (or half days), is considered a separate period of closure for which an employee is not actually seeking intermittent leave. In other words, where an employee’s child is attending in-person classes on Mondays, Wednesdays and Fridays, but learning remotely on Tuesdays and Thursdays, the employee does not need employer consent to take leave for Tuesday and Thursday because those days are each considered separate closures. Practically speaking then, employer consent is only necessary when the employee seeks to take leave for a portion of the time that the school is “closed” or the childcare unavailable.

Documentation and Timing Requirements for Notice of Leave

The revised regulations now require that the documentation necessary to support a leave request under FFCRA must be provided as soon as practicable as opposed to prior to the leave.

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

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

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

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

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

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

Under the Time’s Up Act, nearly all Connecticut employers are required to provide sexual harassment prevention training for all employees, including supervisors and non-supervisors. The original deadline for complying with the training requirement was October 1, 2020.

Due to the COVID-19 pandemic and in accordance with Executive Order 7DDD, the Connecticut Commission on Human Rights and Opportunities (“CHRO”) allowed employers to request a one-time 90-day extension of the deadline, provided the extension was received by September 9, 2020.

Following Governor Lamont’s recent extension of the declaration of public emergency, and based on the related Executive Order 9A, the CHRO has announced that the October 1, 2020 deadline has been extended to January 1, 2021. This is a blanket extension and does not require a request.

Carmody Continues to Provide Sexual Harassment Prevention Training Options

In response to client demand, we continue to schedule sexual harassment training sessions for employers via WebEx. Our next session is scheduled for September 25, 2020 from 10:00 a.m. – 12:00 p.m. If you would like to register employees for this session, please click here.

Please stay tuned for an announcement of additional training dates and special pricing for the remainder of the year. Also, Carmody lawyers have been asked to present training through various industry groups.

If you have any questions or would like more information about these various training options, please contact any member of our Labor and Employment Team below:

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

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

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

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

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

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

Administrators of 401(k) plans and other ERISA-covered retirement plans now have much greater freedom to electronically distribute required plan documents to participants, beneficiaries and other individuals, under final rules recently issued by the U.S. Department of Labor.  Whether employers choose to migrate to a new electronic delivery system at this point in time remains to be seen.

Effective July 27, 2020, for the first time ever, employers and plan administrators are permitted to set and use electronic delivery as the default method for delivering most retirement plan disclosures required by Title I of ERISA, such as a Summary Plan Description and quarterly account statements. The DOL’s earlier safe harbor rules for electronic disclosure, which are still valid, have been available only for individuals who affirmatively consent to electronic disclosure, or those who are “wired at work.”

Importantly (and somewhat ironically), the first step employers and administrators will need to take to avail themselves of the new electronic delivery safe harbor is to distribute a paper notice to covered individuals to initially notify them of the employer’s new electronic delivery system, including notice of the right to opt out free of charge and receive paper copies of covered documents at any time. And of course, this new safe harbor would not be a true ERISA regulation if it did not contain an extensive set of detailed content requirements for both the initial paper notice, and the electronic features of the rule briefly discussed below.

The new electronic disclosure rules provide administrators two general methods for electronic delivery of retirement plan documents: (1) notice and website access; and (2) direct email.

Notice-and-Access

Under the first method, called “notice-and-access”, plan administrators may send covered individuals a “notice of internet availability” (NOIA) to an electronic address provided by the individual or assigned by the employer for other employment-related purposes. The designated electronic address for purposes of receiving an NOIA may be an email address, a smartphone to receive text messages, or potentially other devices. The NOIA must provide a website address or hyperlink to the website where individuals may immediately view or easily log in to view the covered document, which generally must remain on the website for one year, or if later, when the document is superseded by a subsequent version. Among other required content, the NOIA must include:

  • A prominent statement that reads: “Disclosure About Your Retirement Plan”
  • Another statement that reads: “Important information about your retirement plan is now available. Please review this information.”
  • Identification of the covered document by name (for example, a statement that reads: “Your Quarterly Benefit Statement is now available”), and a brief description of the covered document if necessary to clarify the nature of the document.

NOIAs must generally be provided when a covered document is posted to the applicable website, although certain notices may be provided annually as a combined NOIA, with additional special timing rules.

Direct Email

As an alternative to the “notice-and-access” safe harbor, plan administrators may directly email covered documents, either in the body of the email or as an attachment. Many similar requirements of the NOIA apply to the content of a direct email. In addition, administrators are required to take reasonable steps to protect the confidentiality of personal information sent in direct emails to covered individuals.

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