It has been a busy weekend for Team Suisman Shapiro as we review, analyze, assist and counsel our municipal and business clients through Governor Lamont’s Executive Order No. 7H, “Stay Safe, Stay Safe” initiative, issued on Friday evening and expanding restrictions on “non-essential businesses.” These new restrictions take effect
today (Monday) March 23, 2020 at 8:00p.m.
The Department of Economic Development (“DECD”) rendered clarifying guidelines last night, as directed by the Order, to assist Connecticut businesses in understanding whether or not their operations or any portion thereof are considered “essential,” to allow continued operations. Our team offers the following summary and general guidance, and encourages you to contact us if we can assist you as you maneuver through the potential implications of this Order or any others, on your business.
Summary of the “Stay Safe – Stay Home” Order
- All businesses and not-for-profit entities in Connecticut shall employ, to the maximum extent possible, any telecommuting or work from home procedures that they can safely employ
- Non-essential businesses or not-for-profit entities shall reduce their in-person workforces at any workplace locations by 100% not later than March 23, 2020 at 8:00 p.m.
- Any essential business or entity providing essential goods, services or functions is not subject to these in-person restrictions.
Executive Order 7H: ESSENTIAL BUSINESSES
· Essential infrastructure entities
· Essential healthcare operations
· Certain manufacturing entities
· Essential retail establishments
· Legal and accounting services
· State and municipal governments
· Food and beverage retailers
· Certain financial institutions
· Vendors and logistics companies supporting essential services
Executive Order 7H
for a complete description of essential businesses described therein.
to review the
Guidance issued by DECD
on March 22, 2020 in accordance with the Order.
Our operations are deemed essential business and/or services, what if anything should we be doing for our employees?
You are permitted to continue business operations as normal, subject to other Executive Orders already in place. Employers are advised to continue following best practices regarding social distancing and taking other measures to provide a reasonably safe workplace, as provided by your local health district. Remind employees often regarding how to stay healthy, consider closing areas where employees might congregate, making scheduling (e.g. staggering shifts and/or providing time between shifts for disinfecting and/or arrival of departure of employees to minimize contact).
My business is a non-essential business, can my employees work from home?
The Order expressly permits non-essential employees to continue working from home, regardless of whether they work for an essential or non-essential business. The Order simply restricts in-person work at any non-essential business.
Does the employee have an “essential” role so they could continue working?
The Order addresses only essential versus non-essential business types; it makes no distinction between essential versus non-essential positions within those businesses. Furthermore, the DECD guidance specifically states that the guidelines apply to places of business” and thus make no distinction by and amongst employee positions within the business. Also, the guidelines indicate that non-essential businesses may continue activities that are conducted “off-site” (e.g. at a customer’s home) and/or by telecommuting or working from home.
Do employees have to be paid during the length of this Order?
If employees are doing telework or other work remotely, they must be paid for all hours worked if hourly, non-exempt and they must be paid their salary for any workweek within which any work is performed, if classified as salary, exempt. If no work is performed, however, then no pay is due except as just described. Of course, if a company can afford to continue to pay the employees or allow the employees to use accrued paid time off, the employer is free to do so.
We are a non-essential retail business and I am worried about our online business, our mail and the security of our building. What do I do?
The Governor clarified through a separate Executive Order (7J issued on March 22, 2020) that non-essential retailers are permitted to be staffed on site, provided that they may only offer remote ordering (e.g. phone, internet, mail, dropbox) and delivery or curb-side pick-up. He also clarified that all non-essential businesses and nonprofits are allowed to staff or have third patties on site to the minimum extent necessary to provide security, maintenance, and receipt of mail and packages, or other services deemed essential, as described by DECD.
If we do not have work for employees, should we lay them off or furlough?
This is a business decision. A furlough keeps individuals as employees of the company but without any assigned hours for the work (and thus no pay). A layoff is a termination of the employment relationship for now with the hope of rehire in the future.
During the term of this Order, can our employees continue their health insurance?
Employers are advised to understand the terms of their health plans and/or consult with their health plan administrator if they are unsure. Under many health plans, employees remain eligible to continue their benefits despite performing no work (similar to an unpaid leave of absence) so long as the premiums remain paid. However, many plans place time limits (e.g. 30 days) on the length of time a person may be out of work and, thus, no longer an eligible participant. Employers may require employees subject to this Order, or otherwise out of work as a result of COVID-19, to continue paying their portion of premiums by mailing payment directly to employer if there are no wages from which the employer may deduct the premiums. If no longer eligible, employees may then qualify to continue benefits in many instances under COBRA.
Are unemployment insurance (“UI”) benefits available to employees who are not working as a result of this Order?
Yes, and even employees who experience just a reduction in hours/wages as a result of this Order (or any employment furlough/layoff resulting from COVID-19) are eligible for partial UI benefits. Employers must provide information to employees as soon as possible to assist them in applying for unemployment benefits, and are encouraged to advise employees to immediately apply for UI benefits.
If employees are not working as of April 2, 2020, when the new federal Families First Response Act (“FFCRA”) takes effect, are they be eligible for the expanded FMLA benefits and/or paid sick leave afforded thereunder?
Employers are free to provide such benefits at their choosing. However, if employees have been laid off, they will not be eligible for such benefits because they will no longer be employees of the company. Based upon a strict reading of the Order, together with the express language of the FFCRA, it does not appear that the Order qualifies as a “quarantine or isolation order” under the emergency paid sick leave portion of the FFCRA that would qualify furloughed employees for such leave.
Be sure to check with counsel about compliance with your particular situation as the April 2, 2020 date gets closer.
We have a unionized employees - does this change anything you described above?
In addition to what we outlined above, unionized employers also have to consider the impact of the Order on their collective bargaining agreement(s) (“CBAs”). It is unlikely that CBAs are going to address this specific situation (e.g. a closing and/or change of operations due to health pandemic); however, employers subject to the Order should look to CBA provisions that address business closings for applicable language and any obligations pursuant to that language. In addition, the leave provisions of the CBA may provide some guidance.
If the employer is considering a layoff or furlough, most CBAs have language for that process that the employer will have to follow. Notably, to the extent that the CBA is silent, employers should consider the management rights language, which in most cases will give the employer latitude in making decisions related to the business.
CBAs may also have broad language related management rights either in an emergency situation or, generally, with respect to employer right to designate work assignments for employees that will allow the employer some discretion in determining how to assign work to employees in a remote capacity. Employers who remain open are cautioned to revise the overtime assignment/distribution provisions of the CBA to determine if normal procedures apply or if the CBA contains emergency exceptions. Likewise, any employee holdover provisions may be triggered, as well as the employer’s right to revoke and/or cancel previously scheduled vacation leave, personal time off and/or compensatory time.
Finally, employers may find themselves with insufficient numbers of employees in the coming weeks, so CBA provisions regarding outsourcing, use of non-bargaining unit employees, and/or temporary workers should be reviewed. Employers should consider conducting skills inventories of their employees (i.e. CDLs, WPCA licenses, EMT certifications of non-EMS employees, etc.) to gain an understanding of whether employees may be used utilized in varying capacities.
While the duty to bargain over any such decisions will depend on the specific situation, employers may have a duty to bargain over the substantial secondary impacts (i.e. impact bargaining). As a gesture of good labor relations, employers should keep the union apprised of the measures that the employer is taking to maintain its business in this difficult time, even if no impact exists.
The information you obtain in this email is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.