As the COVID-19 pandemic eases a bit in Connecticut, other states are now seeing record high numbers of cases. As a result, Connecticut Governor Ned Lamont has issued new Executive Order No. 7BBB mandating that visitors from certain states with high numbers of cases self-quarantine. For employers, this new self-quarantine rule will add still yet another wrinkle to the complex rules that employers must now be following to operate during this pandemic.
To be clear, Executive Order 7BBB is not directed at employers per se. However, it does state that “[a]ll travelers entering Connecticut from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate over a seven-day rolling average, shall self-quarantine for a period of 14 days.” The order makes the travel advisory effective at 12:01 a.m. on June 25, 2020 (Thursday).
As a practical matter, this new self-quarantine order will play out in a variety of ways for employers. Suppose, for example, that you have an employee who travels to Florida or the Carolinas for a pre-planned, week long, beach vacation. Under the Order, that employee is prohibited from being present at a worksite (or anywhere outside their residence) for two weeks upon returning.
Complicating matters still further, suppose you happen to be an employer with less than 500 employees or a municipality or board of education; in that instance, the paid sick leave provisions of the Emergency Paid Sick Leave Act may very well apply. The employee -- who just took a paid vacation -- would then be eligible for two weeks of pay at the employee's regular rate of pay to a maximum of $511 per day (assuming no telework is available and the employee has not already exhausted leave under the EPSLA).
How is this possible? It is the plain reading of the law and guidance released by the United States Department of Labor. Such guidance clearly states that a shelter-in-place or stay-at-home order issued by any state government authority that causes the employee to miss work, even though work is available, qualifies as a quarantine order under the EPSLA. Under the above example, the employee may end up being out of work and being paid for three weeks (one week of vacation and two weeks of EPSLA). Employers will thus want to know where an employee is going and may consider cancelling or denying the employee vacation time if the employee is headed to a “hot spot”. Given the current pandemic, employers can likely do both. However, employers should consider numerous issues before making such a decision. First, is the employee in a bargaining unit with parameters related to vacation time? If so, that employer may face a grievance or unilateral change claim depending on the applicable contract language. Second, if an employer denies leave simply to avoid an employee using EPSLA leave, that employer may be looking at a claim under the EPSLA. Third, employers will have to deal with the inevitable morale issues by cancelling vacation time.
The path forward is far simpler as it relates to business travel: Employers should consider stopping immediately all business travel to or from any hotspot unless absolutely necessary.
It should be noted that this is a joint effort with New York and New Jersey, and the criteria and protocols will be coordinated with those states in order to ensure that the tri-state area is protected from community transmission of COVID-19, while permitting free travel between and among the states. The Executive Order leaves open the possibility that employees of essential employers may have some exceptions, and it is possible that other exceptions may be established by the Commissioner of Public Health in the upcoming days. Employers should further watch for updates to the list of “hot spot” states because that list is expected to change over time.
As of Wednesday, June 24, the list of states from which travelers will be self-quarantined include: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, Utah and Washington.
Employers should be mindful of the layers of rules being promulgated during this pandemic. We continue to update our Coronavirus Resource page here as events warrant.
Originally published 25 June, 2020
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