Publication

March 23, 2020;
Updated March 28, 2020 to reflect new guidance from the U.S. Department of Labor

What the Orders Say – and Don't Say

On March 20, 2020, Connecticut Governor Ned Lamont issued Executive Order No. 7H, which requires all non-essential businesses or non-profit entities to reduce their in-person workforces by 100% from March 23, 2020 at 8:00 p.m. through April 22, 2020, unless earlier modified, extended or terminated.  The Order, issued in response to the COVID-19 pandemic, directs these business and entities to employ, to the maximum extent possible, telecommuting or work from home procedures.  The Order was issued as part of Governor Lamont’s “Stay Safe, Stay Home” policy.  Governor Lamont calls it “tough medicine,” but the “right medicine” to combat the deepening coronavirus outbreak.

The Order was slightly modified on March 22, 2020 by Executive Order No. 7J to permit: (1) non-essential retailers to be staffed on site, provided that they may only offer remote ordering (e.g., phone, internet, mail, dropbox) and delivery or curbside pick-up and (2) non-essential businesses and non-profits to allow staff or third parties on site to the minimum extent necessary to provide security, maintenance, and receipt of mail and packages, or other services deemed essential in implementing guidance issued by the Connecticut Department of Economic and Community Development (DECD).

While most states have implemented worker restriction measures aimed at non-essential employees, Executive Order 7H targets non-essential businesses.  What does that mean?  What is a non-essential business under the Order?  Executive Order No. 7H provides that no later than 8:00 p.m. on March 22, 2020, the DECD shall issue lawfully binding guidance about which businesses are essential.  DECD issued its guidance on March 22, 2020.  Governor Lamont and DECD have determined that “essential business” under Executive Order No. 7H means:

1. Essential workers in the 16 Critical Infrastructure Sectors (https://www.cisa.gov/critical-infrastructure-sectors), as defined by the federal Department of Homeland Security unless otherwise addressed in a prior or future executive order pertaining to the existing declared public health and civil preparedness emergency.

2. Healthcare and related operations including:

• biotechnology therapies
• consumer health products and services
• doctor and dentist offices
• elder care, including adult day care
• health care plans and health care data
• home health care workers or aides
• hospitals
• manufacturing, distributing, warehousing, and supplying of pharmaceuticals, including research and development
• medical marijuana dispensaries and producers
• medical supplies and equipment providers, including devices, diagnostics, services, and any other healthcare related supplies or services
• medical wholesale and distribution
• nursing homes, or residential health care facilities or congregate care facilities
• pharmacies
• physical therapy and chiropractic offices
• research and laboratory services, including testing and treatment of COVID-19
• veterinary and animal health services
• walk-in-care health facilities

3. Infrastructure including:

• airports/airlines
• commercial trucking
• dam maintenance and support
• education-related functions at the primary, secondary, or higher education level to provide support for students, including distribution of meals or faculty conducting e-learning
• hotels and other places of accommodation
• water and wastewater operations, systems, and businesses
• telecommunications and data centers
• transportation infrastructure including bus, rail, for-hire vehicles and vehicle rentals, and garages
• utilities including power generation, fuel supply, and transmission

4. All manufacturing and corresponding supply chains, including aerospace, agriculture, and related support businesses

5. Retail including:

• appliances, electronics, computers, and telecom equipment
• big-box stores or wholesale clubs, provided they also sell groceries, consumer health products, or operate a pharmacy
• convenience stores
• gas stations
• grocery stores including all food and beverage retailers
• guns and ammunition
• hardware, paint, and building material stores, including home appliance sales/repair
• liquor/package stores and manufacturer permittees
• pharmacies
• pet and pet supply stores

6. Food and agriculture, including:

• farms and farmer’s markets
• food manufacturing, processing, storage, and distribution facilities 
• nurseries, garden centers, and agriculture supply stores
• restaurants/bars (provided compliance with all applicable Executive Orders is maintained)

7. Services including:

• accounting and payroll services
• animal shelters or animal care or management, including boarding, grooming, pet walking and pet sitting 
• auto supply, repair, towing, and service, including roadside assistance
• bicycle repair and service
• building cleaning and maintenance
• child care services
• critical operations support for financial institutions
• financial advisors
• financial institutions, including banks, credit unions, and check cashing services
• funeral homes, crematoriums, and cemeteries
• insurance companies
• laundromats/dry cleaning
• legal and accounting services
• mail and shipping services
• marinas and marine repair and service
• news and media
• real estate transactions and related services, including residential leasing and renting
• religious services (subject to Executive Order No. 7D limiting gatherings to 50 people)
• storage for Essential Businesses
• trash and recycling collection, hauling, and processing
• warehouse/distribution, shipping, and fulfillment

8. Providers of basic necessities to economically disadvantaged populations including:

• food banks
• homeless shelters and congregate care facilities
• human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support social service agencies

9. Construction including:

• all skilled trades such as electricians, HVAC, and plumbers 
• general construction, both commercial and residential
• other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
• planning, engineering, design, bridge inspection, and other construction support activities

10. Services necessary to maintain the safety, sanitation and essential operations of all residences and other buildings (including services necessary to secure and maintain non-essential workplaces):

• building cleaners or janitors
• building code enforcement
• disinfection
• doormen
• emergency management and response
• fire prevention and response
• general maintenance whether employed by the entity directly or a vendor
• home-related services, including real estate transactions, closings, appraisals, and moving services
• landscaping services
• law enforcement
• outdoor maintenance, including pool service
• pest control services
• security and maintenance, including steps reasonably necessary to secure and maintain non-essential businesses
• state marshals

11. Vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including: 

• billboard leasing and maintenance
• child care services
• essential government services
• government owned or leased buildings
• information technology and information security
• logistics
• technology support

12. Defense 

• defense and national security-related business and operations supporting the U.S. Government or a contractor to the U.S. government

The above guidelines apply to places of business.Non-essential businesses may continue activities that are conducted offsite (e.g., employee’s or customer’s home) and/or by telecommuting or working from home.

Further, any other business may be deemed “essential” after requesting an opinion from DECD, which shall review and grant such request if the agency determines that it is in the best interest of the State to have the workforce continue at full capacity to properly respond to the COVID-19 emergency. To request designation as an “Essential Business” please see the link here. 

Any business that only has a single occupant/employee (e.g., attendant) is deemed exempt and need not submit a request to be designated as an Essential Business.

Notably, the Order does not expressly provide for any civil or criminal penalties, though the Governor has stated in public comments that individuals will not face fines but that businesses could be punished. In addition to the civil penalties, employers may face other exposure, including insurance coverage issues should occurrences happen to employees and others in work sites that remain operational but do not qualify as an essential business. 

In addition to the in-person workforce restriction, the Order further provides that, effective immediately and for the duration of the public health and civil preparedness emergency, no municipal chief executive officer may enact or enforce any order that conflicts with any provision of the Governor’s Executive Orders or any order issued by an executive agency under the existing public health and civil preparedness emergency, or issue any shelter-in-place order or order prohibiting travel, unless they first seek and receive written permission from the Department of Emergency Services and Public Protection.

The complete Executive Orders, including 7H and 7I, can be found here. 

DECD Guidance on “Essential Business” can be located here.

Changes to Your Workforce

Whether or not your business is deemed “essential,” you may be considering changes to your workforce for employee safety and in response to the undeniable economic impact of the pandemic. Such changes may include furloughing employees, laying off employees, or reducing an employees’ rate of pay/hours.

We suggest you consider all available options carefully before making any decision, and refer to the following chart for an overview, with details below the chart. Whether notice is legally required as detailed below, we recommend all employers provide written notice to employees of their decision, including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future. Goodwill toward your employees will go a long way in rebuilding.

What Should You Do?

With many employers facing the difficult decision of whether to furlough or lay off employees, the critical question is the expense associated with each choice.  If you have a generous vacation policy, and many tenured employees with banks of hours, it may be more expensive to lay off employees because you would be required to pay out all earned vacation. If you furlough employees, you must maintain benefits and pay sick leave as requested, which includes federal and/or state. Your business also may be required to pay sick leave under the new federal law. You may consider layoff or furlough of some employees and reduction in hourly pay or salary for others.

Other Laws to Keep in Mind

Connecticut Paid Sick Leave Law

The coronavirus outbreak may trigger Connecticut’s Paid Sick Leave law, which requires businesses with at least 50 employees in Connecticut to provide up to 40 hours of paid sick leave to certain service workers.  See Conn. Gen. Stat. §§ 31-57r et seq.  Paid sick leave provides for up to 40 hours of leave for certain workers per year for the following reasons: a service worker’s illness, injury or health condition; the medical diagnosis, care or treatment of a service worker’s mental illness or physical illness, injury or health condition; preventative medical care for a service worker; a service worker’s child’s or spouse’s illness, injury or health condition; the medical diagnosis, care or treatment of a service worker’s child’s or spouse’s mental or physical illness, injury or health condition; and preventative medical care for a child or spouse of a service worker.  For covered service workers and employers with 50 or more employers, Connecticut Paid Sick Leave likely covers certain absences caused by COVID-19.

Connecticut Unemployment Insurance

Work-search requirements have been waived for unemployment claimants.  Unemployment benefits insurance much more efficient and streamlined: employees may go to www.filectui.com to file on their person computer, tablet or Smartphone.

The Connecticut Department of Labor’s guidance provides that an employer can require its employee to stay home, however, the employer should issue the employee an Unemployment Separation Package.  The employee may then file for unemployment benefits and a determination will be made concerning eligibility.  Determinations will be made on a case-by-case basis.

Connecticut SharedWork Program

There is an alternative to laying off employees if business has slowed down as a result of COVID-19.  The Connecticut Department of Labor offers a SharedWork program, which is a smart alternative to a layoff.  The program allows employers to reduce the hours of full-time employees by as much as sixty percent, while their workers collect partial unemployment benefits to replace a portion of their lost wages.

All employers with two or more full-time or permanent part-time employees can participate in the program, which is not designed for seasonal separations.  To qualify, the business’ reduction of work cannot be less than ten percent or more than sixty percent.  See links here.

New Federal Sick Leave Law

The Families First Coronavirus Response Act ("FFCRA") becomes effective April 1, 2020.

• Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  (This includes any government order directing people to remain at home unless they work for an essential business);
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.

• If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
   
• Intermittent sick leave is permitted with the consent of the employer (it is not required).
   
• If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
   
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
   
• Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
   
• Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
   
• Employers must require documentation in support of the reason for leave and include:  
  • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
  • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above). 
     
• If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay – Employees must be paid based on their required compensation as follows:

• Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
• Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act 

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

• The EFMLE applies under the following circumstances:

1. The EFMLE applies to employers with fewer than 500 employees (see below);
2. Employees must be employed at least 30 calendar days at the time leave is requested;
3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
5. The employee must be restored to their position upon return from leave.

• An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
   
• Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
   
• If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
   
• If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
   
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL. 

Unemployment Benefits

A good resource for employers and employees can be found here.

Visit our COVID-19 Hub for ongoing updates.