The opening of schools is fast approaching. And still there is not any real clarity about what that is going to look like once Labor Day rolls around. COVID-19 has proven to be an elusive antagonist, capable of destroying lives and plans in a matter of days.
I think that most of us want to see schools open safely this fall so that children and teenagers, not to mention college students, can get back to learning in a typical academic environment that makes learning exciting and satisfying.
But as it stands now, there remains uncertainty about the prospects of getting back to school in a safe way that assures sufficient learning opportunities for students. I don’t think it is impossible, I just think it is uncertain.
And in the discussion about how it is going to be done, policy makers are concerned most importantly about our students. But there is also concern about teachers, administrators, and staff and their varied health concerns. And these are legitimate concerns. We do not want to be responsible for sending valuable public servants into a hospital or a grave. But we know that according to CDC figures, 6.4 of every 100,000 U.S. residents between the ages of 5 and 17 are hospitalized for COVID disease. For those between the ages of 50 and 64, the number skyrockets to 196 per 100,000. Those between 40 and 49 are hospitalized at a rate of 131 per 100,000.
So from a risk perspective, kids are relatively risk-free. They are not immune of course, but their risk is significantly lower than the rest of the population based upon figures we have received from the CDC to date.
The real concerns then about opening schools are related to our school employees over the age of 40 who are presented with significant risks of illness that can lead to hospitalization.
Our knowledge about COVID continues to evolve. And we often are left to wonder if anyone has a real handle on this disease. Clearly health officials are doing their best to understand how to best prevent transmission, and how to reduce risk all members of the population.
But living in a time of COVID is not a risk-free endeavor. And the worst-case scenario for every one of us is death, followed closely by long-term if not lifetime debilitation.
So what do we do about employees who are unwilling to take the risk of going back to work? What do we owe them as a society? Can we reasonably demand that they make the Hobson’s choice of either going back to work or risking severe illness or death? Nobody signed up for that when they chose their jobs and careers.
The Connecticut Department of Labor currently advises that if an employee is unwilling to take the risk of returning to work and if the person is at “high-risk” or who “might be at high-risk” for “severe illness from COVID-19,” the person will be eligible for unemployment benefits including any extensions and supplements.
However, that does not guarantee that your job will remain open. An employee in this situation may be able to take advantage of FMLA leave for the maximum statutory period in order to hold his or her job open. Alternatively, the employee may be able to seek and obtain “reasonable accommodations” for a disability related to COVID risk.
There are options available for those who work in the education system. Consulting with a lawyer will help you better understand your options.
If you read this column from time to time, you may have learned that I am not a fan of the president. This is America, we can all have our own opinions. I’m just not a fan.
But every now and then he makes a good point.
Last week he floated the idea of moving November’s election. I think that is a terrible idea. We have our elections in this country on the first Tuesday after the first Monday in November. There is no reason to move the election.
But consistent with the standard that we have our elections on the first Monday after the first Tuesday in November is the corollary that we know our results of the election on the first Wednesday after the first Monday in November.
If we are going to have elections that we trust, we need to know the results in a timely manner.
On this point, I agree with the president. When he floated the idea of moving the election, one of his concerns was that he did not want Americans waiting weeks or months to know who won it.
My fervent hope is that our current president does not win it. But if he does, I’d like to know on November 4 or 5.
One of the reasons that many folks still like this president is because he speaks to their sensibilities. We all know that it is probably more dangerous this year to stand in a crowd waiting to vote. We also know that wearing a mask and keeping our hands clean significantly mitigates that risk.
Mail-in voting would completely eliminate the risk of being forced to stand in a crowd and waiting to vote. But it would significantly increase the risk that a significant portion of our population would doubt the results of the election when they get presented weeks or months after the vote occurs.
This is where I agree with the president. That risk is far greater than the mitigated risk of standing in a line waiting to vote.
Our elected officials have known about the risks of in-person voting for four months now. There are obvious ways to minimize the risk. Early voting is one of them. Assigned or appointment voting times are another. A national holiday weekend allowing voting to occur over four days between Friday and Monday prior to November 3 would also eliminate wait times and risk.
In addition, officials could increase the number of voting precincts in concentrated areas to lessen the number of folks that have to turn out in a particular place to vote.
And finally, for those folks who cannot get to a polling place during standard voting times, absentee ballots could continue to be the last alternative in those limited circumstances as they have always been.
I am a reasonable guy. And I know that absentee ballot fraud has occurred before. Some of you reading this column can remember 1986 when Toby Moffett ran against Governor Bill O’Neill in a primary. Fraud was rampant. Ten people were arrested on 94 criminal counts of absentee ballot fraud. It was ugly. It wasn’t the first time there were doubts about absentee ballot voting in Waterbury.
There are a number of ways to decrease COVID-risk while also ensuring the integrity of November’s election. We may be a little late in the game, but it is time for our elected officials to take action.
“The New Normal.” I hate that phrase.
That is how people are describing the lives we are leading these days. In this 2020 where nothing is the same, the way we live our lives has changed, probably forever.
So far, my friends and family have been blessed. We are all healthy. I hope it stays that way. I grieve for those who cannot say the same.
In trying to stay healthy, we have all made sacrifices. But not have all been worse. Lots have been better.
I used to spend at least 90 minutes in my car everyday driving to and from work. That’s over. Forever. I’m never going back to that rat race. I used to drive to meet clients. I used to wait for clients to come meet me. Over.
These days, when I have a meeting, I walk from my pool to my office, slip my collared shirt and tie over my head, button up, comb my hair and sit in front of my Zoom camera. Twenty or thirty or sixty minutes later, I am back at the pool working again.
Wishing for things to be normal again, for me, would be insane.
This is what Covid has taught me: we are adaptable creatures. This pandemic is not the end of the world. For some, it is the beginning of living. For some, being forced to wear a mask means that freedom has begun, it hasn’t been taken away. Because by being forced to wear a mask due to Covid, commutes have ended, endless meetings have ended, and time is our own.
This is the first summer since high school when I can remember what it feels like to be on summer vacation. And believe me, it feels good.
My point is this: if you think folks are going to go back to living the way we lived on March 1st, you are fooling yourself. And if you are fooling yourself, you are going to get left behind, and this Covid pandemic is going to be catastrophic for you.
Because people like me are never going back. And there are a lot of people like me.
The court system – one of the slowest institutions to adapt to change – is moving in a change direction. Already conferences, arguments, and hearings are being conducted by video conference. Once the technology is in place, we are not going back. Good-bye to the cost of maintaining costly courthouses and offices. Good-bye to costly infrastructure.
If the courts have figured it out then you can bet that businesses that are in the business of making money have figured it out too. And taxpayers will start catching on pretty soon as well.
Prepare for green spaces, leisure time, and home-cooked meals.
All the infrastructure that you need, believe it or not, is in that smartphone in your pocket right now.
I thought Uber and self-driving cars were going to end transportation as we know it. I was wrong. Working from home is going to end cars as we know them. I used to put 35,000 miles on my car annually. This year, I won’t get to 10,000 if things keep going as they are.
Goodbye car payments. Goodbye gas payments. Goodbye insurance payments. Hello freedom.
Wearing a mask is freeing indeed. The world has changed forever. We’re not going back folks. Wear your mask and enjoy the freedom. It is going to be blue skies and green spaces coming at you.
For the first couple of weeks after we went into self-imposed lockdown my office was scrambling to understand new federal legislation and how it would affect employees and employers. After we got over that initial hurdle, my phone stopped ringing as much as it did before the lockdown, mostly I think because people were settling in to their new work environments and trying to come to terms with the way we work now.
But about a week ago, the phone started ringing again. This time though the questions are different than they were before Covid. I think we are transitioning to a post-Covid world. Similar to what happened after 9/11, we need to adjust our way of thinking.
Back in 2002, if you failed to grasp the seismic changes that were occurring in the world, you were tagged with having a pre-9/11 mindset. That was not a tag you wanted to wear.
Similarly, today you really do not want to have a pre-Covid mindset. We are not going back folks. And before we really start rolling again, we are going to have to battle our way through a recession that is likely going to last for a couple of years. But when we get through it, work is going to be drastically changed and I suspect folks are going to enjoy and embrace more freedoms while innovation sparks and the nimble businesses take off.
I got a call from a friend the other day who presented one of the “new” issues to me. His company just moved into a gleaming new office space a month before the virus hit. It is technologically up to date, comfortable, and beautiful. The building cost millions of dollars to renovate and it is now state of the art.
And just months after it was completed, nobody is working in it. Everybody is working from home. And the real question is whether or not that building will ever run at capacity as an office building. The space may turn out to be valuable, but not as it was originally envisioned.
In any event, one of the folks who works for the organization in the office is disabled. Now, under both state and federal law, employers are obligated to accommodate disabled employees provided that accommodation does not pose an “undue hardship” to the employer, and the accommodations do not change the “essential functions” of the job. Litigation usually results from interpreting “undue hardship” and “essential functions.”
But in this case, the organization has been accommodating the employee’s disability and the relationship has been a good one for both parties. The employee is a good and valuable worker and the employer is getting good value from the work the employee does with the accommodations.
But now the employee has been working from home for the last eight weeks, and it turns out that the employee is just as effective while working at home as he or she would be working in the office. So the employee has requested an accommodation to allow him or her to continue working from home even if the organization’s employees return to work at the office.
And the question is whether or not working from home can be considered a “reasonable accommodation.” I think that this issue is going to continue to arise now that we have seen that good work can be done outside of the typical office. This is just one of the changes that we are going to see coming to our workplaces in our post-Covid world.
One of the oddities about the CARES Act is that it has incentivized unemployed folks to want to remain unemployed rather than return to work.
I have written about this before. Under the CARES Act, there is a provision that allows eligible persons entitled to state unemployment benefits to collect an additional $600 supplemental payment through July 31, 2020.
For many people, this supplement has resulted in a greater weekly payment than the person would earn by working. That is because when the $600 supplement is added to the state unemployment benefit, the total amount exceeds the average weekly wage for the person.
We have seen competing interests arise over the last several weeks as business owners have started to obtain access to PPP loans through a different provision of the CARES Act. In order for the business owner to obtain full available forgiveness of the loan, the owner has to retain all of his pre-COVID employees on the payroll.
As a result, employers have been calling laid-off employees back to work. And the employees have been replying, “really?” There is no incentive to return. Pay is better out of work and there is no potential exposure to a deadly virus while sitting at home.
So what can be done? Well, right now it seems as if employers can require the employees to come back for the lower pay and if the employee refuses then the employer can notify the department of labor of the employee’s refusal to return, resulting in ineligibility for continued unemployment benefits. This is what is known as an “unintended consequence.” Legislators are pretty adept at causing them when they legislate in a rush.
This was the problem a few weeks ago.
A new one is coming this week.
Governor Lamont has announced that some businesses are going to begin gradually opening up this coming Wednesday, May 20. There will be limitations on how customers are served and so workers who have not already returned will probably not be at full employment. Hours will be limited. Some workers will be recalled and others will not be. This is creating a problem for employers.
First, how does an employer decide who to bring back? In the old days, laid-off employees would be desperate for a recall so that they could get off unemployment and start collecting a full check. But these days, nobody wants to get off unemployment until July 31 goes by because unemployment is more lucrative than work.
But employers can make a return to work acceptable for employees. In Connecticut there is a program called “Shared Work” that allows employers to bring employees back to work on partial employment. As long as the employee works between ten percent and sixty percent of his pre-layoff hours, he will remain eligible for unemployment while working. And in that scenario, according to the CARES Act regulations, he will also remain eligible for the $600 supplement through July 31.
So if an employee gets called back, there is incentive to return because his total paycheck will include wages earned, partial unemployment, and the federal supplement. The total will exceed what he is receiving currently. So next week if an employee is called back to work and feels safe in doing so, he should go back. His wallet will be appreciative.
On Christmas morning after the presents are opened, there is sort of a lull in the day before dinner. Why am I writing about Christmas morning almost six months before the big day?
Because over the last several years during that lull between presents and dinner, I usually get on the internet and decide where our family summer vacation will be in the coming year. There are unbelievable deals on Christmas morning, I guess because there aren’t many folks like me thinking about summer vacation on Christmas morning.
Last Christmas morning I booked a trip to Hawaii. We’ve never been and while I don’t keep a bucket list, Hawaii would otherwise be a checkmark on a bucket list. A memorable one too, I hoped.
But then along came Covid, and all of our plans were spoiled. If it turns out that missing a summer vacation is the worst insult Covid gives my family, I will count my blessings and be grateful for my good fortune.
I suppose my family is not alone in having summer plans changed. But for some folks. Summer travel is a command responsibility, whether it is to attend a wedding, graduation, funeral, or reunion.
As worries about Covid began to ease early last month, folks started getting back into the groove of possibly traveling again. And then along came Executive Order 7BBB.
If you have been to work over the last week, you have heard about Order 7BBB. It is the Governor’s travel order that prohibits folks from a number of other states in the union from traveling to Connecticut without quarantining for fourteen days. If someone is going to come from Florida to Connecticut, for example, he will have to quarantine for fourteen days.
For those of us who are feeling a little freer though, there was an unanticipated consequence for many folks regarding the order. If you decide to follow through on your vacation plans and travel to a state requiring a quarantine, upon your return you may have to quarantine too for fourteen days.
The problem is that if you have to quarantine, you will have to miss work. And your employer is not going to be thrilled by that prospect given that you probably did not return to work until the middle of last month.
So employers almost immediately started issuing notices last week that if your vacation included plans to travel to a “quarantine” state, your vacation approval would be rescinded. The howl you heard last week was your neighbors and co-workers after they were told that work was disallowing their vacation.
Some folks have asked whether they could use available sick or vacation time to deal with the 14-day quarantine if they have the time on the books. The problem with that “solution” is that it will require the employer to lose the services of the employee for two weeks just as the employer is trying to get back on its feet.
Most employers have said that use of available leave time will not be a solution. The only solution will be an agreement to not travel to one of the quarantine states. I have been asked if this is legal by a number of people.
The sad truth is that it is legal. Your employer does not have to allow you quarantine time if you travel out of state to a quarantine state. Just another slap in the face brought to you by the Coronavirus. It has just been one of those years.
At the beginning of March I was thinking about buying a new car. The car I drive now has almost 200,000 miles and the time seemed right to buy. I did not know at the time that the Coronavirus we had been hearing about for several weeks would land on our doorstep with an explosion and cause the gears of the economy to stop. I am glad I did not enter into a purchase contract at that time.
About a week later, as I was thinking about my business and where I want it to be headed in the next year, I entered an agreement with a consultant to guide me in the process. It was an expensive proposition. I viewed it as an important investment for the business. I signed the contract on March 9.
Two nights later I settled in to watch an NBA game when the game was cancelled right before the tip-off. The next day all major sports shut down and within days, the world was shut down.
I was in scramble mode trying to figure out if my revenue streams were about to dry up. I contacted the business consultant and told him I didn’t think I could make the investment. I wanted to back out of the contract.
We talked it through, he gave me some guidance on how to work in the coming COVID world, and I decided not to pull the plug.
I have been lucky. Many business owners have not been lucky. Many have had no choice but to walk away from contractual commitments because the revenue needed to cover expensive contracts just isn’t there. And none of us could have anticipated that a global pandemic would completely shut down the economy when 2020 started.
When 2020 started, the economy was humming, consumer confidence was great, and the unemployment rate was near record lows. Ninety days later and that world is unrecognizable.
And what I see on the horizon is lots of litigation about broken contracts when the dust clears and our courts reopen. And the question is going to be whether or not contracting parties are going to be able to walk away from their commitments because of the unexpected pandemic that shut the world down.
If you have not already begun to hear this term, you will. It is called “force majeure.” It is a concept that they taught us in law school.
I remember my professor telling us that a “force majeure” was like an “act of God” that made it impossible for a contractual obligation to be fulfilled. And because of the impossibility, the contract could not be enforced.
But there is no clarity that the global Coronavirus pandemic constitutes a force majeure that will excuse contracting parties from their obligations.
Contractual obligations are binding. A failure to comply with a contractual obligation is considered a breach which can be remedied by the law. Force majeure is a legal concept that will excuse a party from failing to perform its contractual obligations due to an unavoidable event beyond the control of a party to the contract.
But there are questions in the legal world about whether or not the current pandemic will excuse all contractual obligations. Different circumstances will have to be considered depending on the status of the parties. Rest assured though that courts are going to be dealing with lots of these claims over the next couple of years.
Three weeks ago, I offered my first column regarding COVID-19. I never envisioned that we would be where we are today.
Over the last week, I have fielded phone calls from employers and employees worried about layoffs, unemployment, personal health and safety, and use of leave time. Workers and employers are being overwhelmed on multiple fronts.
I thought it might make sense to try to answer some of your basic questions. I am writing this on Thursday, and I cannot predict where we will be on Sunday or Monday.
First off, the primary goal over the last week has been to find a means to continue paying employees. Lost income and shuttered businesses pose the greatest societal threat once we get past the health effects of this insidious virus.
For employers who have been forced to take the step of laying off employees due to lost revenues, particularly in the hospitality industries, plans need to be made to care for those employees. First, employees must be encouraged to file claims immediately for unemployment benefits. Employees can do so online at www.ctdol.state.ct.us/UI-online/index.htm.
The next key issue for employees who are laid off is continuation of health insurance. Typically, health insurers will not cover employees who are no longer actively working. I can envision a scenario where government action mandates that this be waived, but it has not happened yet. In that case, employees will be provided with a COBRA notice allowing them to continue coverage. However in that scenario, the employee will be responsible for the entire monthly premium which can be as high as $2500 a month for a family plan.
It is possible for employers to negotiate with their health insurance providers to continue coverage for employees until the furloughs cease, hopefully by the summer. It would make business sense for insurers to allow this in order to continue collecting premiums for their products. Again, this would seem to be an area where governmental action would be required to allow for payment of premiums from a government source, particularly in areas where business revenues have completely dried up.
The plan passed by Congress last week will likely provide relief payments of $1000 to adults and $500 to children. Those payments could be used to pay for health insurance premiums if needed. The better means of continuing coverage however would be to send direct payments to insurers at negotiated reduced rates for the duration of the pandemic.
For those businesses that continue to operate, concerns have been raised about those employees who come to work exhibiting symptoms of COVID-19. The question is whether employers can inquire about the condition and send an ill employee home from work. The answer is “yes.” Doing so would not violate the Americans with Disabilities Act.
Businesses can also suggest that employees displaying symptoms be required to work from home if that is an option. The EEOC has said that “tele-work” is an effective infection control strategy.
Employees who are concerned about exposure to COVID-19 can only refuse to come to work if they believe that they are in “imminent danger” of contracting the disease. This would be a difficult standard to prove, but employers should be taking all precautions necessary to ensure the safety of their employees including the provision of personal protective equipment and ample hand-sanitation resources.
I wrote my first Legal Business column in 1997. Except for a short foray into local politics in the late 90s, I have been writing this column continuously now for more than 23 years. But before I started typing out my thoughts on legal issues, I was a sportswriter at this newspaper.
In the early nineties I used to cover local high school sports. You may notice that many of my columns are about sports and law because I have always loved writing about sports. Back then when I would type my stories into one of the computers in the newsroom on Meadow Street, there was a talented writer sitting a few desks over from me by the name of Adrian Wojnarowski.
I knew then that the kid was going places. We were lucky to have him writing about local sports for the few years he was here. He was a great writer.
You may have heard of him. He is the go-to source of NBA news these days and works for a local media company in Bristol. They call him “Woj.”
Anyway, Woj got himself into an unfortunate bind last week in a way that lots of folks get themselves into unfortunate binds these days. He got sucked into the latest storm of divisiveness and decided to speak out about a matter of social importance. He did it in a way that even he acknowledges is unbecoming.
We all do it, though. We all get passionate about issues that matter to us, and in this day of type, click, send, we often don’t have time to think about our message fully before the ether carries the message to the intended recipient.
Anyway, Woj had gotten riled by a message from Missouri Senator Josh Hawley who had written a letter to Adam Silver, the NBA Commissioner, wondering why the NBA was allowing some social justice messages like “Black Lives Matter” to be worn on uniforms, but not allowing others like “Blue Lives Matter.”
This kind of letter from the Senator was intended to inflame passions and create divisions. And it did.
And let me say this: I think that if the NBA is going to allow its uniforms to bear social justice messages, then it should allow messages of support for other aspects of society too. Restricting content is a bad idea if we want all voices to be heard.
So the Senator’s question was a good one. But it was likely intended to cause an uproar rather than to gain message equality.
In any event, Woj took the bait. He sent a two-word message to the Senator via ESPN email according to reports. The two words rhymed with “duck goo.”
Now, Woj is in the duck goo. The Senator promptly went to Twitter to criticize Woj’s employer. And last Sunday, Woj was suspended by ESPN according to reports.
But the question is, should Woj have been suspended, and was the suspension legal? In Connecticut, employees have the right to speak out on matters of public concern, and they may not be disciplined for that speech.
If however the speech “substantially or materially interferes with the employee’s bona fide job performance or the working relationship between the employee and the employer,” then he may be disciplined.
The question is whether or not Woj’s two-word response to the Senator substantially interfered with his working relationship with ESPN. I suspect it didn’t, and that is probably why he still has a job.
The U.S. Supreme Court’s term ended last week. I would say that after all that we have been though as a nation during the term, the Court provided a beacon of hope for those of us who still care about the rule of law in our nation.
Nobody got everything they wanted from this court, but most of us got a little of what we wanted. And those who run left of center did better than expected.
Still, I was dismayed by one of the court’s final decisions issued last week in a case called Our Lady of Guadalupe School v. Morrisseey-Berru. In that case, the Court gave a free pass to religious organizations, including the Catholic church, to indiscriminately discriminate illegally against employees based on any federally-protected classification including race, disability, age, or sex.
And from my perspective, the claims raised by religious institutions, many of which have been exposed as corrupt and toxic organizations over the last couple of decades, are suspect. These organizations have neither earned nor are worthy of any special protections that allow them to discriminate in service to their so-called higher religious cause.
How could a higher-religious cause ever allow for discrimination on the basis of race, or age, or sex. If anyone should be held to a higher standard, shouldn’t God be the One?
Apparently not according to the U.S. Supreme Court.
In last week’s decision, the plaintiff, a teacher named Agnes Morrissey-Berru brought an age discrimination complaint against her employer, Our Lady of Guadalupe School, a Catholic school in California.
She claimed in her complaint that she was fired by the school so that she could be replaced by a younger teacher. Those facts, if true, define age discrimination. And in this country, that is illegal. In the Catholic church, it is also immoral.
In a companion case, another Catholic school teacher brought a disability discrimination complaint arguing that she was terminated after she asked for a leave of absence to get treatment for breast cancer.
Our anti-discrimination laws exist to protect people. The court’s decision eliminates that protection in service to a greater goal of protecting “religious freedom.” Whether religious freedom should take precedence over the lives of people is an interesting policy argument.
However, let’s be honest. In each case, the Catholic church was not interested in protecting its “religious freedom.” Its religious freedom was not at stake. It was interested in protecting a right to act illegally by discriminating against employees.
And we have to ask ourselves, do we want to give the Catholic church, or any institution really, the right to completely disregard our laws on the basis of a false argument that religious freedom requires it. We have seen how the Catholic church has acted to perpetrate, perpetuate, condone, and cover-up illegal abuse for decades. Why would we give such an organization the right to discriminate and ruin lives while at the same time delivering a message to its flock that sometimes discrimination is good.
It doesn’t make sense.
The Supreme Court failed us when it held that the so-called “ministerial exception” gives religious institutions carte blanche to flout anti-discrimination laws in service to an amorphous right to shape its faith and mission through discriminatory conduct. We can do better, and we should.