Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 13, 2020, the Connecticut Department of Labor (CT DOL) issued guidance for workers and employers in the form of a set of frequently asked questions about coronavirus (COVID-19). The guidance addresses commonly asked questions that employers and employees might have—including questions about unemployment compensation, paid sick leave, family medical leave, and Connecticut wage and hour laws—as businesses throughout Connecticut and the world navigate the unprecedented situation created by the novel coronavirus. While the CT DOL guidance is not binding law and does not enact any substantive changes to the law, it provides helpful insight into the CT DOL’s enforcement position on the laws within its purview over the coming weeks and months.
The CT DOL guidance confirms that employees who are discharged or who have to take unpaid time off from work because they contracted COVID-19 may collect unemployment benefits, provided they meet all of the eligibility requirements under the law. Because the eligibility requirements include being physically able to work and available for work, this means that claimants who are actively ill or still contagious should not be able to collect benefits until after they have recovered from the illness. By contrast, employees who are not sick but whose employer requires them to self-quarantine without pay, as well as employees who are temporarily laid off or furloughed, can collect unemployment benefits provided they are able to and available for work. The guidance also indicates that employees who take unpaid time off from work to care for an ill family member can apply for unemployment benefits, but they will not collect any benefits unless they are able to and available for work. In addition, the guidance confirms that employees who have both their pay and hours reduced but not eliminated, such as a full-time employee who is moved to part-time, may be eligible for partial unemployment benefits.
Over the coming weeks, some employers may be forced to implement layoffs and possibly close their businesses as a result of the coronavirus and the associated economic downturn. The CT DOL’s guidance urges employers to consider taking part in its “SharedWork” program, which allows employers to reduce full-time employees’ hours by up to 60 percent, while the employees collect partial unemployment benefits. This program is available to any employer with two or more full-time or permanent part-time employees provided the reduction of work is between 10 and 60 percent and is not the result of expected seasonal fluctuations in the employer’s business.
Employers, to the extent they are financially able, may also consider offering paid leave to employees who are asked to stay home. Doing so will both assist employees who rely on their income to support themselves and their families and also encourage employees to be forthcoming about their health and exposure to the virus, which is beneficial to everyone. Of course, many employers will be unable to afford this, and layoffs may be inevitable. Such employers are encouraged to educate their employees on the various types of leave they may be entitled to, such as paid sick leave, the federal Family and Medical Leave Act (FMLA), and the Connecticut FMLA (CFMLA).
Paid Sick Leave and Family Medical Leave
The COVID-19 pandemic may also implicate 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 per year to certain service workers. A service worker who is covered by the law can use paid sick leave for absences caused by one or more of the following:
- The illness, injury, or health condition of the service worker or their child or spouse;
- The medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of a service worker, their child or spouse; or
- Preventative medical care for a service worker or their child or spouse.
Connecticut employees may also be entitled to unpaid leave and job protection under the federal Family and Medical Leave Act (FMLA), which covers employers having 50 or more employees in a 75-mile radius, and/or the Connecticut FMLA (CFMLA), which covers employers having 75 or more employees in Connecticut.1 The FMLA and the CFMLA require covered employers to provide unpaid leave to eligible employees who are unable to work due to their own or a covered family member’s serious health condition, among other things. For example, an unpaid leave to care for an ill family member who is suspected of having or has tested positive for COVID-19 may constitute protected family medical leave, whereas an unpaid leave to monitor a family member who has not been diagnosed and does not exhibit symptoms of the virus most likely would not be covered. The CT DOL guidance also confirms that an employer may request medical certification from the eligible employee’s or covered family member’s health care provider to determine whether the leave is being taken for a serious health condition.
Wage and Hour Laws
As we have already seen, some employers will be forced to reduce their hours of operation or temporarily close their businesses in response to the coronavirus pandemic. As the guidance explains, whether an employee must be paid during a temporary shutdown or reduction of hours depends on the circumstances and on whether the employee is classified as exempt or non-exempt under the law. Generally speaking, non-exempt employees need only be paid for the hours they work, and are entitled to overtime if they work more than 40 hours in a week. By contrast, employees classified as exempt must satisfy certain duties requirements and be paid on a salary basis, meaning that they are typically paid the same salary regardless of how many hours they work in a week, provided that some work is performed during the week.
For example, if an employer decides to shut down its business for a day or for a particular shift and instructs employees not to report for work, it is not required to pay non-exempt "hourly" employees. However, under the same scenario, exempt employees must be paid their full weekly salary if they have worked any portion of the week. The employer cannot take any deductions from exempt employees' pay or their accrued paid time off benefits in this situation without risking the exemption, because Connecticut law disallows deductions "of any kind" when there is a lack of work due to the employer's operating requirements.2
If the business remains open, the employer is not required to pay non-exempt employees who do not report for work. If an exempt employee does not report to work for one or more full days due to personal reasons other than sickness or injury, they need not be paid and the employer may deduct from their accrued paid time off in full-day increments without risking the exemption. The guidance also confirms that neither exempt nor non-exempt employees are required to be paid for any work week in which they do not perform any work.
The COVID-19 pandemic creates an unprecedented and fluid situation, as a result of new information about the novel coronavirus and governments’ plans to address it appearing daily, and even, at times, hourly. Throughout this time, Connecticut employers would be well advised to reevaluate their pay practices, as well as their policies on telecommuting, paid and unpaid time off, and leaves of absence. While the CT DOL guidance provides helpful insight into the agency’s enforcement position, it does not (indeed, cannot) answer every question or address every situation that is likely to arise as a result of the pandemic. Employers having specific questions about managing and compensating their workforce as a result of this pandemic are advised to bring those questions to labor and employment counsel.
1 In June 2019, Governor Ned Lamont signed Public Act 19-25, “An Act Concerning Paid Family and Medical Leave.” Although the new law will guarantee paid leave and expand CFMLA coverage to all private employers with at least one employee in Connecticut, these provisions do not take effect until January 1, 2022.
2 Conn. Agencies Regs. § 31-60-14b(2)(A).