COVID-19 Employment Law Updates

State and federal guidance for employers continues to evolve and change on a daily basis. Some recent developments should be of particular interest to Connecticut employers. 

Travel Requirements

Travelers coming to Connecticut can avoid or reduce mandatory quarantine by with a negative COVID-19 test result.

Connecticut imposes a 14-day quarantine period for all travelers coming to Connecticut from high risk states and countries, except in certain limited circumstances.

One of the limited circumstances is when a traveler working in a designated critical infrastructure position travels from a high-risk jurisdiction to Connecticut as part of their work in Connecticut.

In that circumstance, the traveler is not required to quarantine because of such travel.

Beginning September 18, 2020, travelers coming to Connecticut may avoid the 14-day quarantine period if they obtain a negative test result within 72 hours before their arrival in Connecticut or may reduce the quarantine period by obtaining a negative test result after entering Connecticut.

Travelers must quarantine until such time as they obtain written documentation of such negative test and submit it to the Commissioner of Public Health or her designee.

Employers should be aware that employees entering Connecticut from a high risk jurisdiction after vacation or other personal business are required to file a Connecticut Travel Health Form.

 Of course, if any employee (including an employee returning to Connecticut from a high-risk jurisdiction), exhibits symptoms of COVID-19, the employee should not be allowed to return to the workplace and CDC guidance should be followed.

Recent FFCRA Changes

The U.S. Department of Labor’s Wage and Hour Division recently issued a revision of its temporary rules issued on April 1, 2020, implementing the paid leave provisions of the Families First Coronavirus Response Act—namely, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Such programs provide qualifying employees with paid leaves, at differing benefit levels, based on the qualifying reason(s) for such leave.

The EPSLA and EFMLEA, by statute, are scheduled to expire on December 31, 2020. 

The original temporary rule provided several exemptions and guidance on how these paid leave programs should be administered.

Such guidance is changing effective September 16, 2020. Among other things, the temporary rule is updated to clarify that such paid leave may only be taken when the employer has work for the employee to perform and only if the employee “would have worked if not for the qualifying reason for leave.”

In other words, FFCRA paid leave may only be taken during periods when the employee otherwise would have been employed and only when the employee’s reason for missing work is a qualifying reason.

Healthcare Provider Exemption

Under the original temporary rule, employers who were healthcare providers could elect to not provide EPSLA and EFMLEA paid benefits to virtually all of their employees.

The revised rule changes the definition of healthcare provider such that medical practices and similar employers are unlikely to be able to exclude all employees from these paid leave programs.

Under the new rule, licensed medical professionals, nurses, nurse assistants, medical technicians, employees providing services under the supervision or direction of a healthcare professional and employees who “are otherwise integrated into and necessary to the provision of healthcare services such as laboratory technicians” qualify as “healthcare providers.”

However, employees not directly involved in patient care such as “IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers” are not “healthcare providers” under the FFCRA.

With regard to such employees, the employer must now accept and process EPSLA and EFMLEA claims.

In short, as of Sept. 16, 2020, healthcare employers with fewer than 500 employees who previously determined that they could exclude all of their employees from the EPSLA and/or EFMLEA will need to re-examine their workforce to determine which employees are now eligible for FFCRA paid leave programs.

Leave for School Closings

Under previous governmental guidance, intermittent leave under the EPSLA and EFMLEA was available to qualifying employees only with the employer’s approval.

The new temporary rule, in response to a court ruling, takes the position that certain forms of leave are not intermittent at all. 

For example, if an employee’s child attends a school that has an alternate day or hybrid attendance schedule, each day that school is not open for the employee’s child counts as a separate occurrence allowing for leave under the EPSLA and/or EFMLEA without the employer’s approval, assuming that all other conditions are met.

The new guidance states in part:

“The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so.

“For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

Because such leave is not considered “intermittent,” explicit employer approval is not required. In other words, such leave would be treated in the same manner as the other qualifying reasons for leave under the EPSLA which do not require employer approval.

The new guidance also makes clear that notice of the need for leave under the EPSLA may not be required in advance of taking such leave and “may only be required after the first workday (or portion thereof) for which an employee takes paid sick leave.”

After the first workday, an employer may require notice as soon as practicable.

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About the author: Patrick McHale is a partner at the labor and employment law firm Kainen, Escalera & McHale in Hartford.