Connecticut Department of Labor Issues Guidance to Employers Facing COVID-19 Issues
The Connecticut Department of Labor issued guidance entitled “Frequently Asked Questions About Coronavirus (COVID-19) For Workers and Employers” (last updated on March 20, 2020 (the “Guidance”). The Guidance provides no new legal requirements or amendments to existing laws, but instead, analyzes issues raised by the COVID-19 pandemic under existing laws in the areas of unemployment insurance, paid sick leave, wage and hour law and the Connecticut Family and Medical Leave Act (“CTFMLA”).
Unemployment Insurance Benefits for Shut Downs and Quarantines
The Guidance confirms that employees can apply for unemployment insurance benefits where their employer requires them to self-quarantine without pay for 14 days even though they are not sick. Similarly, it confirms that employees may apply for unemployment benefits when their employer closes and requires employees to stay home for 14 days (without opportunity for telecommuting) without pay. While the Guidance does not guarantee receipt of unemployment benefits, it clarifies that an employee can apply for unemployment insurance and will be considered for wage replacement benefits.
Waiver of Work Search Requirements
Normally, in order to qualify for unemployment benefits, the individual must demonstrate that they are making reasonable efforts to obtain work. Conn. Gen. Stat. Sec. 31-235(a)(2). On March 19, 2020, the Connecticut Labor Commissioner waived the work search requirement for all individuals who are receiving unemployment benefits until such time as the Governor terminates the public health emergency and civil preparedness emergency. Thus, so long as these individuals remain ready to work once the pandemic crisis measures have been lifted, they do not need to demonstrate that they are searching for employment in order to obtain unemployment insurance benefits.
Unemployment Insurance Benefits Where the Employee or a Family Member Has COVID-19
The Guidance addresses the situation where an employee needs to take time off from work because he or she has COVID-19 and does not have paid time off benefits or has been terminated due to the illness. The Guidance provides that the individual may apply for unemployment insurance, and a determination will be made as to whether they are eligible for benefits. The Guidance states that decisions will be on a case-by-case basis but cautions that one of the eligibility requirements is that the individual be physically able and available for full time work, unless they have a note from a physician stating they are only available for part time work.
The Guidance also states that if an employee is unable to work because a family member has COVID-19, they may apply for unemployment but are likely ineligible for benefits.
Further, the Guidance provides that employers can require an employee who is sick with COVID-19 to stay home, and reminds employers to provide the employee with the Unemployment Separation Package at the time they are sent home if there are no paid time off benefits available.
Unemployment Insurance Benefits For Part Time Employment
The Guidance also addresses the issue of whether a reduction in hours from full time work allows an employee to seek unemployment benefits. If employees are still working part time, they should apply for unemployment benefits, as they could be eligible for partial benefits. For example, if an employer only permits an employee to work part time, as opposed to his or her normal full time schedule, the employee should apply for partial unemployment benefits. Similarly, the Guidance provides, if an employee has both a full time job and a separate part time job, and the full time job terminates due to COVID-19 leaving the employee with only the part time position, the employee should apply for partial unemployment benefits.
Where To File Unemployment Claims
The American Jobs Centers are closed to in-person visits, but the Guidance provides telephone numbers for employees (860) 263-6975 or (203) 455-2653 and a web address to submit general questions: firstname.lastname@example.org. The CTDOL offers an online assistance center, which will include LiveChat to answer questions about unemployment compensation, including the impact of COVID-19: www.filectui.com. Employers with questions may call (860) 263-6705 or email DOL.MeritRating@ct.gov.
The Shared Work Program – An Alternative to Layoffs
The Guidance reminds employers that the Shared Work program is available to employers. Instead of laying off employees if business has slowed as a result of COVID-19, employers can apply for the Shared Work program. Under this program, employers can reduce hours by as much as 60% and employees can collect partial unemployment benefits to replace a portion of their lost wages.
The Guidance explains that the Shared Work program will have less impact on an employer’s unemployment taxes than a full layoff. It will also allow employers to retain its skilled workforce through a downturn, and save the employer the time and expense of hiring and training new employees when business improves.
Employers with two or more full-time or permanent part-time employees can participate in the program. The program can be applied to part or full-time permanent employees. The program is not designed for seasonal separations. In order to qualify, an employee’s hours and wages cannot be reduced by less than 10% or more than 60%. Additional information about the Shared Work program is available at http://www.ctdol.state.ct.us/progsupt/bussrvce/shared_work/index.htm.
Connecticut’s Paid Sick Leave May Provide Benefits For Employees Unable to Work Due To COVID-19
The Guidance also reminds employees that Connecticut’s Paid Sick Leave Law (“PSL”) may provide pay for certain absences caused by COVID-19. The PSL applies to employers with 50 or more employees in Connecticut who employ “service workers” under the PSL. Covered service workers (as defined by the PSL) are entitled to up to 40 hours per year of PSL 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,
Preventative medical care for a child or spouse of a service worker.
Connecticut FMLA Provides Unpaid Leave For Employees Impacted by COVID-19
The CTFMLA currently provides up to 16 weeks of unpaid leave of absence and certain job protections for employees who, among other things, have a serious health condition or are needed to care for their spouse, son, daughter or parent who has a serious health condition. Only employers with 75 or more employees in Connecticut are covered by the CTFMLA. To be eligible for CTFMLA, an employee must have worked for at least 12 months and 1,000 hours during the preceding 12 months prior to the leave.
The Guidance reminds employers that the CTFMLA may protect an employee’s job where, for example, an employer sends the employee home because they have a fever, if the employee meets the eligibility requirements and works for a covered employer. By way of a further example, the Guidance explains that the CTFMLA may apply to an employee whose employer sends them home because their 17 year-old daughter just returned from travel to a Level 3 country under the CDC guidelines and has a fever and cough. However, if the employee’s daughter in the above example does not have any signs or symptoms of COVID-19, the CTFMLA would not apply because the daughter does not have a serious health condition.
Wage and Hour Laws
The Guidance also applies the existing wage and hour laws to several COVID-19 situations. For example, the Guidance provides that if an employer closes for the day and notifies its employees not to report to work, non-exempt (hourly) employees are not required to be paid, because an employer is not required to pay a non-exempt employee when they perform no work. If the employee is exempt, however, and has worked for any portion of that workweek, then as the Guidance explains, the employer is required to pay the exempt employee their full weekly salary. This is because employers must pay exempt employees their full salary if they work any portion of the workweek (except where the employee asks for the time off for personal reasons). Employers should be careful that they have properly designated their employees as exempt or non-exempt in applying these rules.
The Guidance provides that when an employer closes for 14 consecutive days and its employees do not work during that period, then neither exempt nor non-exempt employees are required to be paid, since they did not work at all during each of the two workweeks. In addition, the Guidance states that if an employer decides to keep the business open, but the employee elects not to report for work, then the employee does not need to be paid. This is true for the non-exempt employee because the employer need not pay non-exempt employees for any time they do not work. According to the Guidance, the Connecticut State Agencies Regulations Sec. 31-60-14(b)(1)(B), allows the employer to make a deduction in full day increments for the exempt employee where the employee asks for the day off for personal reasons. Again, employers must ensure that they are properly classifying their employees as exempt or non-exempt.
The Guidance does not answer all questions and issues employers are currently facing. It is provided for general informational purposes only and is not intended to be a substitute for state statutes. It does, however, provide helpful advice to employers on how the Connecticut Department of Labor is likely to apply its existing laws to the new issues facing employers as a result of COVID-19. Please contact EBG for guidance regarding dealing with issues related to COVID-19.