401.521.4LAW (4529)
Compiled by : Munro Delotto Law, LLC Local Employment and Small Business Law Firm
Federal (or otherwise national) Business Help U.S. SBA On March 16, the U.S. Small Business Administration approved (/Office-of-the-Governor/News/Press-Releases/2020/03-2020/Governor-Lamont-Announces-Connecticut-Businesses-Approved-to-Receive-Disaster-Assistance).
Small business owners in the following designated states are currently eligible to apply for a low-interest loan due to Coronavirus (COVID-19): California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Indiana, Maine, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island, Utah, and Washington. To apply: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources
Find more information on the SBA’s Economic Injury Disaster Loans at: SBA.gov/Disaster.
Governor Lamont’s request to begin offering disaster-relief loans to Connecticut small businesses and nonprofits. Companies in the state can now apply for loans of up to $2 million through a special page on the SBA website (https://www.sba.gov/funding-programs/disaster-assistance). SBA also has more valuable information for businesses (https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loanresources)
Small businesses can learn more about the program and apply for financial assistance at www.sba.gov/disaster (http://www.sba.gov/disaster) or call the SBA at 1-800-659-2955.
Federal Government is looking into combination of loans, direct checks, and liquidity for small businesses.
Deferment of IRS payments – possibly can defer up to $10 million in taxes (check with your accountant/tax attorney).
Individual stimulus (assumedly the “direct checks” above).
More to come (hopefully!)
CT Department of Economic and Community Development is launching the COVID-19 Business Emergency Response Unit to aid businesses in economic recovery to assist in navigating resources and developing new resources.
POSSIBLE small business bridge loans at a lower percentage rate than SBA loans for short term (3-12 months) with dollar amount capped. Details could change and rollout expected next week (week of 3/24/20).
Department of Banking issued guidance to state-chartered banks and credit unions. Requests by state to eliminate interest through 6/30 but no legislation yet – checking into what this is Microsoft may be providing Microsoft 365 at a reduced fee or free – checking into this Utilities asked to provide forbearance until May 1, 2020 – not sure if this is an ask or actual.
Possible waiver of regulations such as allowing alcohol service for take out (but not delivery).
Possible moratorium on evictions and foreclosures.
Small businesses with questions about this SBA loan program or other assistance provided at the state-level can call 860-500-2333 to speak directly with a DECD representative. Businesses can also stay informed on news and guidance related to COVID-19 and its impact on Connecticut by visiting the state’s dedicated coronavirus website at ct.gov/coronavirus (http://ct.gov/coronavirus).
Twitter: @GovNedLamont (https://twitter.com/GovNedLamont )
Facebook: Office of Governor Ned Lamont (https://www.facebook.com/GovNedLamont)
Munro-Delotto Law is combining information from several sources, some with new and evolving laws, so we will do our best to summarize the laws accurately as applied to COVID-19 but the information provided is for educational purposes only and does not substitute for competent legal advice. We reserve the right to modify, update, and do not warranty the information provided.
*NOTE that there are two separate statutes for Paid Leave Now – CT PSL and Federal FMLA as amended by the Families First Act passed March 2020
BUT SEE THE DETAILED SUMMARY of CTPSL and Amended FMLA (federal) (still evolving) Families First Coronavirus Response Act, which modified the Family and Medical Leave Act (FMLA) – OUR CURRENT UNDERSTANDING
Connecticut Paid Sick Leave Law – CONNECTICUT GENERAL STATUTE 31-57r PAID SICK LEAVE (“PSL”)
Families First Coronavirus Response Act, which modified the Family and Medical Leave Act (FMLA) – OUR CURRENT UNDERSTANDING
TIME WORKING TO QUALIFY: An employee who has been employed for at least 30 calendar days. Note that this is a much lower threshold than the 12 month/1,250 hour tenure requirement that otherwise applies to FMLA leave.
SIZE OF BUSINESS TO QUALIFY: Private employers with fewer than 500 employees, and most public employers. For smaller employers, this bill could introduce FMLA coverage to their workplace. It is unclear if there are exclusions for emergency responders and/or businesses with less than 50 employees where the requirements would jeopardize that business as a going concern; traditional FMLA did not apply unless 50 or more employees – Munro-Delotto Law, LLC will continue looking into this exclusion.
QUALIFYING CONDITIONS FOR PAID SICK LEAVE: – paid leave seems to only cover COVID-19-related actual medical or caregiver leave BUT covers every employee caring for a child of the age needing care if school/childcare are unavailable – Munro-Delotto Law, LLC will be verifying this:
The Act requires emergency sick leave for employees who cannot work for any of the following reasons:
A. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
B. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
C. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
D. The employee is caring for an individual who is either (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
E. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions;
F. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
REQUIRES JOB PROTECTION: The FMLA’s job restoration requirements generally apply, with limited flexibility for employers with fewer than 25 employees – 25 employees and more require job restoration.
REQUIRES PAID LEAVE AFTER AN INITIAL 10 DAYS UNPAID LEAVE: Paid Leave Requirement: Unlike FMLA leave under the 1992 Act, leave lasting longer than 10 days must be paid at two-thirds an employee’s regular rate of pay. In more detail:
The first 10 days of leave may be unpaid. During this unpaid 10-day period, an employee may elect, but cannot be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave.
After 10 days of leave have been taken, the employer must provide paid leave. Paid leave must be an amount that is not less than two-thirds an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work; provided, however, that such paid leave is capped at $200/day. Paid leave must continue until the qualifying condition no longer exists, or after twelve weeks of leave have been taken. Finally, there is a $10,000 cap on the aggregate amount of paid leave paid to an employee. Subject to the specific conditions of forthcoming Treasury Department regulations, 100% of the emergency FMLA and paid sick leave wages may be reimbursed via payroll tax credits – Munro-Delotto Law, LLC is looking into the specifics.
PAYRATES: 100% of regular hourly rate or salary for the duration where the qualifying condition is (A), (B), or (C) above. 2/3rds of regular hourly rate or salary for the duration where qualifying condition is (D), (E), or (F). Tipped workers likely minimum wage.
Allotment of Sick Leave: For full-time employees, 80 hours. For part-time hours, emergency sick leave is the number of hours an employee works, on average, over a 2-week period.
No Carryover: Emergency paid sick time provided by the Act does not carry over from one year to the next.
No Payout at Termination: Paid sick time not used at the time of an employee’s termination, resignation, or retirement does not need to be paid out to the employee.
May be Used Before Other Paid Leave: Employers may not require an employee to use other paid leave provided by the employer to the employee before the employee uses paid sick time provided for by the Act.
Expanded Definition of family members to include: foster, adoptive, step, parent of domestic partner, parental in-laws, guardians, and those who stood in loco parentis.
Effective Date: The Act takes effect not later than 15 days after the date the Act is enacted.
Sunset: The paid family leave requirement expires on December 31, 2020.
PAID SICK LEAVE (“PSL”) – no reason this would NOT apply to COVID-19 but has been in place
Connecticut is one of a few states that requires employers to give paid sick days to employees.
In Connecticut, employers with 50 or more employees must provide paid sick leave to workers that are “Service Workers.” BE AWARE THAT THIS IS A BROAD DEFINITION – SEE JOBS LISTED ON SUBSEQUENT PAGES.
These employees accrue one hour of paid sick leave for every 40 hours they work and may accrue up to 40 hours off per year (ACCRUES AT 1 HOUR PER EVERY 40 HOURS WORKED) and applies to part time.
Employees must be hourly/non-exempt (but temporary and per diem do not qualify). They paid time may use their time off for their own illnesses or to care for an ailing family member.
Service worker is entitled to use accrued paid sick leave upon completion of 680 hours of employment from the date of hire (if the employee works at least 10 hours per week av. prior quarter).
Hours (40) can be carried over per year but employee can only use 40 hours per year no matter how many accrued. The employee can be paid out of accrued sick time yearly rather than allowed to carry over but employer is not required to pay out accrued leave if it remains unused upon termination.
Other paid leave than can count toward compliance with the law may include, but not be limited to, paid vacation, personal days or paid time off.
Service workers who earn tip credit – because hourly rate is lower than minimum wage, would likely be paid minimum wage for any paid sick leave hours used; all others normal hourly wages during sick leave.
Manufacturing and non-profit (and potentially other) exemptions apply.
Break in service rules (if employee leaves then returns). With layoffs it is unclear if the accrued leave is gone upon re-employment or if it remains – normally with a break in service accrued leave starts over upon re-employment but with mass layoffs it is unclear how this will work.
Anti-Discrimination and Anti-Retaliation provisions and implied job protection.
Questions? Please call the Wage and Workplace Standards Division at (860) 263-6790 or the Office of Program Policy at (860) 263-6755. If you would like to email your questions, please contact: jennifer.devine@ct.gov or heidi.lane@ct.gov or contact Munro-Delotto Law, LLC.
UNPAID LEAVE WITH JOB PROTECTION AND ANTI-RETALIATION PROVISIONS – largely duplicates federal but different qualifications and more weeks benefit:
Connecticut has its own version of the family and medical leave law. It requires employers with at least 75 employees to give eligible employees up to 16 weeks off in any 24-month period for the following reasons:
for the employee to recover from a serious health condition for the employee to care for a family member with a serious health condition (state law covers more family members than the federal FMLA, such as parents-in-law, domestic partners, and the children of domestic partners) for organ or bone marrow donation, or for the birth, adoption, or placement of a child.
PRIVATE Business Interruption Insurance
Business Interruption Insurance: A business interruption insurance policy should list or describe the types of events it covers. Events that are not described in the policy are typically not covered.
You should also determine if the policy requires your business interruption to last for a certain time period before you are entitled to any policy benefits.
Business interruption coverage typically can only be triggered if you have property loss that leads to the business interruption. One example could be that a fire in your office has caused you to suspend your business activities.
Because coverage varies across policies, you will need to read your particular policy and consult your broker or insurer or
its agent for more information. Or consider checking with a contract litigation attorney to read the contract to see if this unique circumstance might be argued to be within coverage. Lack of case law (since we have never dealt with a pandemic) means there is always a chance.
The Connecticut Insurance Department has an FAQ that provides more information (/CID/Coronavirus/Coronavirus-FAQs).
* If you do not carry this insurance there may be coverage under another insurance policy such as part of a Business Owners Policy
UNEMPLOYMENT REMINDERS
To help your employees with faster processing, ensure employees have the employer’s registration number and ensure you provided an Unemployment Separation Package completed.
May not be charged back to employers insurance due to state of emergency
CONTRACT Considerations Force Majeure Events and Clauses
If you have contractual obligations to vendors or third-party contractors, review contracts for force majeure clauses.
A force majeure event refers to the occurrence of an event which is outside the reasonable control of a party and which prevents that party from performing its obligations under a contract. English common law has no general concept of force majeure (save for the limited doctrine of contractual frustration, which is addressed below). A party’s ability to claim relief for a force majeure event therefore depends upon the terms of the contract, and the force majeure provision in particular. Force majeure provisions are express terms and will not ordinarily be implied into contracts governed by English law.
A party affected by such an event of force majeure will typically be relieved from performing the obligation affected for the duration and to the extent affected and may be entitled to compensation.
As with all matters dependent upon the terms of the contract, each force majeure provision must necessarily be considered on its precise terms and in its specific context.
Events Capable of Constituting Force Majeure
The “test” for force majeure usually requires the satisfaction of three distinct criteria: 1.the event must be beyond the reasonable control of the affected party; 2.the affected party’s ability to perform its obligations under the contract must have been prevented, impeded or hindered by the event; and 3.the affected party must have taken all reasonable steps to seek to avoid or mitigate the event or its consequences.
Many contractual provisions set out a specific list of force majeure events which are deemed to be events of force majeure beyond the control of the parties, such as “pandemics,” “epidemics” or “diseases.” A specific reference to a “pandemic” will make it easier to bring a force majeure claim but will still require the other criteria for a force majeure test to be satisfied.
However, if the provision does not include language to that effect, then it will be necessary to consider whether COVID-19, or its impact on a business or a project, is captured by a different concept, such as an “Act of God,” “action by government” or a catch-all provision. Most force majeure provisions contain “catch-all” language in respect of events which are “outside the reasonable control of the party affected”. It seems fairly clear that a pandemic such as COVID-19 would qualify as force majeure under such a provision.
Munro-Delotto Law does not employ a tax attorney; this is additional information for businesses to look into with their own accountant/tax attorney.
We are a local business here in Mystic. While our law office is only a satellite location, I live in Mystic myself and my son goes to Deans Mill Elementary so I am very much part of this community. Please let me know if I can help in ANY WAY. I can help you all through this difficult time with any employment law, or contract law, or any legal question. If I cannot answer it I can probably find someone who can.
We will be updating this information as the crisis continues (or as we think of more relevant information to compile) so please feel free to let us know that you would like this ongoing information.
Paige Munro-Delotto Ph.D., Esq.
Call or email us:
paige@pmdlawoffices.com 860-245-4670