Some businesses in the state will reopen Wednesday, but what if you don’t feel safe going back to work? Experts answer that question and more.
On Wednesday, Connecticut will take its first, tentative steps toward reopening the state’s economy, crippled by the COVID-19 pandemic, which has sidelined nearly a half-million workers and forced countless others to hunker down and work from home.
Employees who do go back next week face an uncertain workplace with vastly different rules: social distancing, the wearing of face masks and, perhaps, new work schedules.
“This is such a fluid situation,” Megan Carannante, an attorney who co-chairs the employment practice at Pullman & Comley in Hartford, said. “It’s unprecedented. We’ve got new guidance and laws coming out what seems like daily.”
Carannante, who typically represents employers, said no one knows how it will go — especially at first — navigating federal and state guidelines; interpreting new medical findings on the coronavirus; and dealing with specific concerns by individual employees.
“The idea is to get back to work while obviously putting safety first, and that’s the balance employers and employees will have to [strike,]” Carannante, who represents employers, said.
Some attorneys who represent workers say they foresee a tough road ahead, based on the experience of those who have remained in the
workplace as “essential” throughout the spread of the pandemic.
“I have a sense that certain things are going to be really difficult,” said Gregg D. Adler, a longtime employment law attorney in Hartford who represents workers. “I see — like in businesses that are open — I see a real tension between the business’ need and desire to keep going in an efficient way and the fact that workers are really scared.”
Gov. Ned Lamont’s first phase of reopening the economy emphasizes that if workers can continue to work from home, they should — at least in the early days.
The Courant asked Carannante, Adler and other employment experts about some of the issues facing employees as they return to the workplace, as COVID-19 continues to claim lives daily in Connecticut and the development of a vaccine could still be months away:
Q: What are the basics of what will happen on May 20?
A: These workplaces, if they choose to do so, may reopen: outdoor restaurants, offices, hair salons and barber shops, retail stores and outdoor museums and zoos.
While guidelines vary by industry, these are the general rules. Businesses must: appoint an employee to put safety measures in place; limit occupancy to 50% of capacity; provide personal protective gear, but employees may use their own cloth face coverings; train employees, with weekly updates; install social distancing markers and develop stringent disinfecting procedures.
Q: Can employers change work schedules or duties of employees in order to minimize COVID-19 risk?
A: In order to comply with state rules, Carannante said companies can stagger work schedules and make other alterations to shifts so there are fewer people in a particular space at one time. The guidelines call for 50% capacity and this is especially true for offices.
“But there’s no overarching answer as to how work hours or shifts may be changed across industries, across companies,” Carannante said. “It’s going to be balancing business need with safety.”
Workers should talk with their employer about any specific needs, such as the availability of child care.
One caveat: In companies with a unionized workforce, the employer would most likely have to negotiate with the union to make any changes, Adler said.
Q: If employees refuse to go to work for fear of catching the virus, will they be eligible for unemployment benefits?
A: Traditionally, unemployment has applied a straightforward standard: Someone out of work must be able and available to work to receive benefits.
But the pandemic has expanded those eligible for unemployment benefits to include employees who are unavailable for work due to COVID-related concerns about their own health; the need to provide care to someone else with COVID-related health concerns; or to care for a child whose school or care program is closed.
Workers expressing COVIDrelated concerns who do not want to return to work will have their unemployment benefits adjudicated on a case-by-case basis, according to the Department of Labor. A hearing would likely be held with the employee and employer .
Mark Soycher, human resource counsel at the Connecticut Business and Industry Association, a statewide industry group in Hartford, said “anxiety absences” are unlikely to win unemployment payments “unless they can show some medical documentation of a diagnosed mental health condition, which would then constitute a COVID-related medical condition.”
Q: Can businesses require employees and visitors to wear masks?
A: Both federal and state guidelines are clear: Employers can require employees — and visitors — to wear masks in any space that is considered a “public space,” unless a medical condition makes it difficult to wear one, Carannante said.
The idea is to reduce the spread of the disease, she said.
“If someone came to work without a mask, these new rules now require an employer to provide that employee with a mask,” Carannante said. “Same thing with customers or visitors of any sort.”
Q: What if an employee believes the employer is not following guidelines to ensure worker safety?
A: Nina Pirrotti, an employment law attorney in New Haven who represents employees, said the first step is to have a conversation with the employer.
“Be very specific about what you see as the problem,” Pirrotti said, “and see if you can get the employer on board with remedial action. If that doesn’t pan out, the agency that comes to mind is OSHA.”
OSHA would be responsible for investigating, and that would come with the protection against any employer retaliation for making the complaint, Pirrotti said.
“There is also the possibility of the employee — after they have documented it — not returning to work until the problem is addressed and then potentially being in the situation where they can avail themselves of, at least, unemployment,” Pirrotti said.
Q: Is there any regulation of the rules?
A. Adler said the success of the rules will depend largely on employees keeping watch.
“Whether this stuff is complied with, is going to fall on employees,” Adler said. “Employees are the ones that are going to know. It’s not like the state is going to send investigators out to every workplace to see if people are 6 feet away from each other. There’s a lot of self-regulation involved in this.”
Adler points out that complying with regulations — any regulations — comes with a cost for a business owner.
“The compliance is often left up to the employees to bring up or the lack of compliance,” Adler said.
Employees can also call the 2-1-1 phone number, which is run by the United Way, to express concerns they may have about their employer if they believe rules are not being followed.
Q: What documentation can an employer require for an employee seeking to take a leave under the Family First Coronavirus Response Act (FFCRA)?
A: The U.S. Department of Labor has relaxed the documentation required to qualify for a leave under FFCRA, Carannante said.
“They said you can ask the employee who thinks they have COVID-19 what their symptoms are and ask them to provide a date when they are going to visit a health care provider, but you can’t require that they actually provide a doctor’s note confirming that they have COVID-19,” Carannante said.
Carannante said the change was intended to relieve a burden from the health care system, and allow employees to take leave quickly and help stop the spread of the virus.
(This does not apply to leave under the Family and Medical Leave Act.)