In the COVID-19 Pandemic, What Comes Next For Employers?...© Shipman & Goodwin LLP 2020. All rights reserved. © Shipman & Goodwin LLP 2020. All rights reserved. In the COVID-19 Pandemic,

© Shipman & Goodwin LLP 2020. All rights reserved.© Shipman & Goodwin LLP 2020. All rights reserved.

In the COVID-19 Pandemic, What Comes Next For Employers?

Presented By Gabriel JiranDaniel A. SchwartzKeegan Drenosky

March 31, 2020

© Shipman & Goodwin LLP 2020. All rights reserved.

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Agenda• What existing and new laws

do employers need to know • Options available for

employers to get through the next months

• Issues on the horizon for employers

• What comes next for litigation and legal proceedings

• Additional FAQ and Q&A

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Resources• Shipman & Goodwin Resource Page

https://shipmangoodwin.com/Coronavirus-COVID-19-Guidance

• CDC https://www.cdc.gov/coronavirus/2019-nCoV/index.html

• Connecticut https://portal.ct.gov/Coronavirus

• FAQ for CT https://portal.ct.gov/-/media/Coronavirus/COVID-19-FAQs.pdf?la=en

• USDOL https://www.dol.gov/agencies/whd/pandemic

• CTDOL FAQ http://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF

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https://shipmangoodwin.com/Coronavirus-COVID-19-Guidancehttps://www.cdc.gov/coronavirus/2019-nCoV/index.htmlhttps://portal.ct.gov/Coronavirushttps://portal.ct.gov/-/media/Coronavirus/COVID-19-FAQs.pdf?la=enhttps://www.dol.gov/agencies/whd/pandemichttp://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF


Employer Options• Business as usual,

no changes to employee

• Layoff• Furlough• Reduce Hours• Reduce Pay (across the board or individually)• “Shared Work” Program

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Employer Options - Layoff• Termination of employment and benefits• COBRA eligible• Payout of PTO (if policy says so)• May be “rehired”• Eligible for unemployment benefits• Not eligible for FFCRA benefits

If already on EPSLA or FMLA+, can still place on layoff

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Employer Options - Furlough• Treat as forced unpaid leave of absence

Typically of short term duration. 60-90 days? 180?

• Discontinue pay, hours, responsibilities Benefit continuation? If not, COBRA eligible

• No payout of PTO or severance; still an “employee”• Not eligible for FFCRA benefits while on furlough• Eligible for unemployment benefits

“Leave of absence” on “Pink Slip”• When hours/work available, already your employee

No need to go through rehire onboarding

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Employer Options - Reduction• Hours

May still be eligible for partial unemployment May still be eligible for paid leave under FFCRA Exempt/non-exempt overtime issue

• Salary reduction Beware contract issues May not be eligible for partial unemployment Still eligible for paid leave under FFCRA

Calculation of benefit – see DOL Guidance

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Shared Work Program• Application Process

Allows employee to continue salary and benefits

Receives partial unemployment benefit from CT

Pros: Orderly process; employee buy-in

Cons: Time consuming; waiting for approval; additional verifications

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Existing Laws• WARN Act• Unemployment Compensation

New Form UC-61 includes “Leave of Absences”

• Existing Anti-Discrimination Laws Updated EEOC Pandemic Guidance

• Existing Wage/Hour Laws (Federal, State) Updated CTDOL FAQ

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https://www.ctdol.state.ct.us/HP/UC-61Fillable.pdfhttps://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfmhttp://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF


New Laws and Orders• Public Health Emergency to September

2020• Gov. Lamont has issued Executive

Orders Modified existing laws in significant ways

such as statutory deadlines, restrictions on business operations

• FFCRA, effective 4/1/20• CARES Act, effective immediately

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Overview of the FFCRA • Families First Coronavirus Response Act • Effective Date: April 1, 2020• End Date: December 31, 2020• DOL Issued guidance FAQ on March 24th, with

supplemental guidance including over weekend

• https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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https://www.dol.gov/agencies/whd/pandemic/ffcra-questions


Overview of the FFCRA

1. Emergency Family Medical Leave Expansion Act (EFMLEA or FMLA+) Adds new covered reason under FMLA for care of

minor child whose school or place of care is closed or child care provider is unavailable due to COVID-19

Provides partial paid leave for new covered reason 2. Emergency Paid Sick Leave Act (EPSLA)

Provides 80 hours of paid leave for self care or quarantine or care of another due to COVID-19

Two Significant Changes to Paid Leave Policies

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Emergency Family Medical Leave Expansion Act

Who is covered? What benefits are provided? Employees: employed for 30 days or more 12 weeks of leave - job protected

Employers: Private employers with fewer than 500

employees Public agencies (federal/state governments,

political subdivisions, schools)

First 10 days of Leave UnpaidRemainder of Leave 2/3 regular rate of payPayment cap $200/day, $10,000 total

Covered Reason: Employees who are unable to work, or telework, due to a need to care for a minor child if the child’s school or place of care has been closed or the child care provider is unavailable due to a public health emergency related to COVID-19

Exception: Employers of less than 25 employees where the employee’s position no longer exists upon return due to economic conditions or other changes caused by the coronavirus emergency, and the employer has made reasonable efforts to restore the employee to an equivalent position

*Note that the new benefits apply only to the new covered reason, not other FMLA uses

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Emergency Paid Sick Leave Act • Provides 80 hours of paid sick leave for COVID-19 related illness or

quarantine if employee is not able to work or telework

• Pro rated for part-time employees

• Applies to private employers with fewer than 500 employees and public agencies (federal/state governments, political subdivisions, schools), and “any other entity that is not a private entity”

• Available for immediate use, regardless of length of employment

• Paid sick leave is in addition to any accrued paid leave

• Employer may not require employee to use other paid leave first

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Emergency Paid Sick Leave Act • 6 Covered Uses For Paid Leave

1. Is subject to federal, state or local quarantine or isolation order2. Has been advised by a healthcare provider to self-quarantine3. Is experiencing symptoms of COVID-194. Is caring for a quarantined individual5. Is caring for a minor child whose school or place of care has been closed due to

COVID-196. Is experiencing any other substantially similar condition related to COVID-19

• 1-3 are compensated at employee’s regular rate of pay Cap = $511/day, $5,110 total

• 4-6 are compensated at 2/3 regular rate of pay Cap = $200/day, $2,000 total

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Exemptions• Healthcare Providers

Anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.

Any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

Anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

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Exemptions• Emergency Responders

Employees who are necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.

Military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills.

Includes employees who work for facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Anyone the Governor determines is an emergency responder.

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Small Business Exemption (


Notice Requirement

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https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf


CLE CODE: 5728

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CARES Act• Broad stimulus bill with several employment

law provisions• Union neutrality for mid-sized businesses

(500-10k employees) that receive loans Also cannot abrogate existing CBA

• Unemployment compensation generally for “any reason” that any employee may be out of work related to COVID-19, including caring for someone with the virus

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CARES Act• Sec. 2102 – Provides up to 39 weeks

unemployment if not otherwise eligible including those who are self-employed or independent contractors or exhaust state benefit

• Sec. 2104 – Blanket emergency increase in benefits; $600 in addition to state law

• Sec. 2107 – Additional 13 weeks of benefits to those who have exhausted all other benefits

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CARES Act• Sec. 2108 – Provides

funding for states with existing “short-time” or “partial” unemployment programs like CT

States that do not have such a program will be funded now by the federal government under Sec. 2109

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CARES Act• Employee Retention Credit

Creates a tax credit for employers that fully or partially shut down during any quarter due to government orders

• Payroll Tax Delay Delays 50% of the 2020 employer payroll taxes to

12/31/21 and other 50% to 12/31/22• FFCRA credit

Employers may be entitled to advance of payroll tax credits triggered by paid leave provisions of FFCRA

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What Issues Come Next?• Reorganizations/permanent reductions in

force• Changes in operations• Rehiring decisions• Expansion of teleworking and remote access• Cross-training of employees• Crisis planning

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Status of Litigation/Legal Proceedings• With the slow down of the courts, pending

litigation may take much longer• Employers may have an opportunity for

resolving cases• If not, employers will need to plan for

ensuring witness availability and retention of key documents

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Status of Litigation/Legal Proceedings• Expect future litigation from job actions taken

during the pandemic• Document and retain records related to

business and personnel decisions• Be careful with email and other electronic

communications, as they may all be discoverable

• Have a centralized approach to employment decisions

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Questions?

These materials have been prepared by Shipman & Goodwin LLP for informational purposes only. They are not intended as advertising and should not be considered legal advice. This information is not intended to create, and receipt of it does not create, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel.

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Visit Our COVID-19 Resource Center

https://shipmangoodwin.com/Coronavirus-COVID-19-Guidance

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https://shipmangoodwin.com/Coronavirus-COVID-19-Guidancehttps://shipmangoodwin.com/Coronavirus-COVID-19-Guidancehttps://shipmangoodwin.com/Coronavirus-COVID-19-Guidance

In the COVID-19 Pandemic, What Comes Next For Employers?Slide Number 2AgendaResourcesEmployer OptionsEmployer Options - LayoffEmployer Options - FurloughEmployer Options - ReductionShared Work ProgramExisting LawsNew Laws and OrdersOverview of the FFCRA Overview of the FFCRAEmergency Family Medical Leave Expansion Act Emergency Paid Sick Leave Act Emergency Paid Sick Leave Act ExemptionsExemptionsSmall Business Exemption (

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In the COVID-19 Pandemic, What Comes Next For Employers?...© Shipman & Goodwin LLP 2020. All rights reserved. © Shipman & Goodwin LLP 2020. All rights reserved. In the COVID-19 Pandemic,