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At this time we are receiving many calls from contractors throughout the state facing unprecedented challenges during the COVID-19 pandemic. CHCC continues to work with our lobbyist Statehouse Associates and other business organizations to address the most common questions in this FAQ.

Business Closure Questions:

Am I required to shut-down operations?

State and local officials may invoke public health codes requiring closure of certain businesses. When requiring closure or restrictions of business operations, public health orders may define the specific types of businesses affected. In Connecticut, Construction has been deemed essential.
Alternatively, a “shelter in place” order will require closure of all “non-essential businesses.” The order will then define what businesses are deemed “essential” and exempt from the general closure order. Connecticut Exempts:

• Grocery stores, agricultural, food processing, cultivation and distribution companies;
• Gas stations, banks, hardware stores, automotive repair, laundromats;
• Health care facilities, pharmacies, veterinary clinics, home-based care providers;
• Public works, construction or maintenance of housing, utilities;
• Plumbers, electricians, and other service providers essential for health and sanitation;
• Businesses that provide shelter and other necessities of life;
• Insurance offices and legal practices;
• Businesses supplying essential businesses with vital support and supplies.

NOTE: Many jurisdictions will default to guidance from the U.S. Department of Homeland Security as to what constitutes essential critical infrastructure workforce.
 

Will employees qualify for unemployment insurance?

In the event of a full or partial business closure, affected employees will be entitled to unemployment insurance. An employee will not qualify if they are choosing not to work.

Do I have to provide federal paid leave for employees who are laid-off?

No. Federal leave requirements will not apply if an employee is laid-off. NOTE: A business should have a legitimate business reason for laying an employee off.

Workplace Safety Questions:

Do I have to follow CDC guidance relating to COVID-19?

No. But if you get a question from an employee or OSHA about what steps you are taking to keep your workplace and employees safe, you need to have an answer. For example, have a policy you communicate to your employees that you are routinely disinfecting our workplace, including wiping down open surfaces, doorknobs, and other repeatedly touched objects.

Can I take an employee’s temperature?

Yes. But it is only permissible because COVID-19 has been declared a pandemic. Also, please remember COVID-19 is highly contagious. It may be best to have employees take their own temperature and text or e-mail you the results before they come in. If you or an employee is going to take the temperature of another worker, you should consult with a physician on how best to accomplish this without risking infection of the person taking the temperature of employees.

When is a COVID-19 case deemed work-related for purposes of OSHA?

Only when it is more likely than not that a worker is infected with COVID-19 as a result of performing their work-related duties.

NOTE: Whether or not a workers’ compensation claim can be made for a COVID-19 case will be determined by state law.

When do I have to report a COVID-19 case to OSHA?

Only if it is a work-related case of COVID-19 and it results in in-patient treatment or the employee dies.

General Public Health Questions:

May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?

Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy, including based on timely information from public health authorities about pandemics, public health emergencies, or other similar conditions. But employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the Equal Employment Opportunity laws (e.g., race, gender, country of origin).

Can I send employees home from work if they are showing symptoms?

Yes. Employees should be sent home if they are showing COVID-19 symptoms even if the employee is not self-reporting.

Can I ask an employee if they are experiencing symptoms?

The federal government has issued guidance directing that employers may ask about COVID-19 symptoms at this time.

Can I send employees home even if they are not experiencing symptoms?

Employees may be required to stay home if they have been in close contact with someone with COVID-19, or if they have traveled from an area with widespread transmission.

Employers may also choose to layoff employees for any non-discriminatory reason.

Federal Paid Leave Questions:

Do I have to pay employees if they are not working?

Ordinarily the rule is that Hourly employees are paid only for the time they actually work. But the newly enacted Family First Coronavirus Response Act (FFCRA) may require small employers to provide two weeks (10 days) of emergency paid sick leave. In addition, FFCRA may require paid FMLA leave to take care of a child when their school or daycare has been closed.

Salaried exempt employees must still be paid their normal salary as long as they performed any work within the workweek. The only exception is if the employee chooses to stop working for personal reasons, including for a self-imposed quarantine; however, they may then qualify for emergency paid sick leave or paid leave to care for a child under the FFCRA.

NOTE: If an exempt employee is required to quarantine under public health codes or because the employee is sent home from work by the employer, they must be paid their usual salary if they have performed any work within the workweek.

Is there a small business exemption for federal emergency paid sick leave or paid FMLA leave?

Under the FFCRA, small businesses with fewer than 50 employees may qualify for an exemption from providing paid sick leave and/or expanded family and medical leave, due to the closure of a child’s school or place of care related to a COVID-19 public health emergency, if doing so would jeopardize the viability of the business. 

FFCRA delegates authority to the Secretary of Labor to decide what businesses qualify.

The Secretary of Labor says that a business with fewer than 50 employees qualifies if providing paid leave to an employee (due to closure of their child’s school or daycare) would jeopardize the viability of the business as a going concern. 

To claim this exemption the business must determine that at least one of the following applies:

1. Cash-Flow Problems. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
2. Substantial Risk to Financial Health or Operational Capabilities. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
3. Insufficient Workers Available. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

There is no requirement to expressly seek DOL’s approval prior claiming the exemption. But, DOL guidance advises businesses should maintain documentation for the reasons they’ve claimed exemption.

NOTE: Health care providers and emergency responders are exempt from paid FMLA requirements. Fisher Phillips provides further guidance on these exemptions here.

What documentation should I require from an employee claiming paid leave?

It is prudent to require employees who are out to provide written a attestation as to the reason for their leave so that you can confirm whether it qualifies. 

DOL guidance provides that employers should keep records confirming: (1) the name of the employee; (2) the qualifying reason for requesting leave; (3) a statement that the employee is unable to work, including telework, for that reason; (4) the dates for which leave is requested; and (5) associated documentation, which may include a copy of a government quarantine or isolation order, written documentation from the healthcare provider, and or documentation that employee’s child is unable to attend school or daycare as a result of a COVID-19 closure. For school and daycare closures, employees should document the name of the school or daycare provider, as well as the name of the child, and obtain a statement that no other suitable person is available to provide care. 

DOL guidance urges employers to maintain a copy of notice posted on a government, school or daycare website, or published in a newspaper. Alternatively, an email or letter from an employee or official of the school or place of care will suffice.

NOTE: Employers should maintain these records, especially if they intend to claim tax credits for payment of federal paid sick leave and or paid FMLA.

How do I provide required notice to employees about paid leave?

Employers may satisfy the notice requirements of the law by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website. Since the law only applies to current employees, the notice does not have to be shared with laid-off individuals.

You can obtain the notices free of charge by contacting DOL’s Wage and Hour Division at 1-866-4-USWAGE (1-866-487-9243) or you can download and print the notice yourself.

How will the new federal paid leave laws be enforced?

There are penalties for non-compliance; however, good faith mistakes will not be penalized in the first 30 days. This means employers should be striving for compliance and remedying any mistakes as soon as possible.

Under what circumstances does an employee receive emergency paid sick leave?

Beginning no later than April 1, 2020 and throughout the rest of the year, covered employers must provide paid emergency sick leave to any employee—regardless of how long they have worked—who is unable to work for any one of the following reasons:

• The employee is subject to a federal, state, or local quarantine or an isolation order related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• The employee is caring for an individual who has been advised by a health care provider to self-quarantine due to the concerns related to COVID-19.
• The employee is caring for his/her child in the event of school or daycare closure due to COVID-19, or if the childcare provider of the son or daughter is unavailable due to COVID-19 precautions.
• 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.”

If my employees are unable to work because of a government ordered business closure, will they qualify for paid leave under the FFCRA?

DOL defines a government “quarantine or an isolation order” broadly to cover “stay at home” and “shelter in place” orders that require closure of non-essential businesses, as well as orders requiring specific workers to stay home (i.e., requiring individuals to self-quarantine when they return from another state, or requiring individuals with certain conditions to remain on lock-down). Accordingly, the presumption is that employees are entitled to paid sick leave if they are unable to work remotely under these orders.

Yet there is no requirement to provide paid leave if there would be no work available to the employee during the time in question. For example, a business that closes (temporarily or indefinitely) due to a downturn in business is not required to provide paid leave during this time. DOL explains that if the business would not be able to remain open due to lack of customers it would not have to provide paid leave. DOL makes clear that this is true even if a government stay at home order is the reason for which the business is unable to attract customers. Fisher Phillips offers further insights here.

Will I have to provide paid leave if the employee has been furloughed?

No. An employee who has been laid-off or furloughed, will not be eligible for paid federal leave. But they should qualify for unemployment insurance.

How many hours of emergency paid sick leave do I need to provide?

Fulltime employees are entitled to a total of 80 hours (i.e., two weeks) of paid emergency paid sick leave. Part-time employees are entitled to paid sick leave to cover their average hours worked in a typical two-week period. If hours vary from week to week, employers should look to the average of hours worked over the prior six months as a guide. For new hires, emergency paid sick leave should be granted based on any agreement about weekly hours at the time of hire. If there was no agreement, paid leave should be based on a reasonable estimate of weekly hours.

At what rate must I pay an employee taking emergency paid sick leave?

The amount of emergency paid sick leave depends on the reason for which leave is taken:

School closures: If the employee is unable to work because they must care for their child due to closure of schools or daycares, they are entitled to 2/3rd their usual rate of pay or salary. But federal emergency paid sick leave is capped at $200 per day and $2,000 over ten days.

Care for an Individual subject to mandatory quarantine: If the employee is unable to work because they must care for an individual who is subject to a federal, state or local quarantine or isolation order, they are entitled to 2/3rd their usual rate of pay or salary. But federal emergency paid sick leave is capped at $200 per day and $2,000 over ten days.

Employee is subject to a mandatory quarantine: If the employee is unable to work because they are subject to a federal, state or local quarantine or isolation order, they are entitled to their usual wage or salary subject to a cap of $511 per day or $5,110 over ten days.

Employee is advised to quarantine by a health care provider: If the employee is unable to work because their health care provider has advised that they self-isolate, they are entitled to their usual wage or salary subject to a cap of $511 per day or $5,110 over ten days.

Employee is experiencing symptoms and seeking diagnosis: If the employee is unable to work because they are experiencing symptoms and seeking diagnosis of a suspected COVID-19 case, they are entitled to their usual wage or salary subject to a cap of $511 per day or $5,110 over ten days.

NOTE: The pay requirements are based on the employee’s usual wages or salary over a typical two-week period; however, sick leave pay may not be lower than required minimum wage in your jurisdiction. For example, some employers pay tipped employees less than the state/local minimum wage because ordinarily they make-up the difference in tips. (This is known as a “tip credit”). The employee’s ordinary wage might be something like $5.00 per hour, while state/local minimum wage might be significantly higher. In that scenario paid sick leave must be paid out at the highest applicable minimum wage rate.

What if I choose to provide full pay when I’m only required to provide 2/3rds pay?

An employee is only entitled to 2/3rds of their usual pay when they take leave for the purpose of providing care to an individual subject to a mandatory quarantine or when providing care for a child as a result of a COVID-related school or daycare closure. But there is nothing stopping an employer from providing full pay if they choose. In any event, they may only pursue tax credits for 2/3rds of the employee’s usual wage or salary.

Do I have to provide emergency paid sick leave for overtime hours?

Yes, if the employee typically works more than 40 hours in a week; however, DOL guidance provides that the employer need not provide “premium” pay for overtime hours where the employee is drawing emergency paid sick leave. And in any event, the employer is permitted to cap paid sick leave pay at 80 hours over two weeks.

What if I provided paid sick leave prior to April 1, 2020?

Paid leave provided prior to April 1, 2020 will not count to fulfill your obligation to provide emergency paid sick leave under the FFCRA.

Can I require an employee to exhaust accrued PTO time and sate/local paid sick leave before providing federal emergency paid sick leave?

No. The FFCRA prohibits employers from requiring an employee to exhaust accrued PTO or state/local paid sick leave.

Do I have to give emergency paid sick leave if I already provide PTO or if I am already required to provide paid sick leave by state/local law?

Employees are entitled to utilize federal emergency paid sick leave before using state or local paid sick leave, or accrued PTO.

Can I require my employees to use PTO?

It depends on state law. Generally, employers may require exempt or non-exempt employees to use accrued PTO if they are taking leave for personal reasons, as in the case of a self-imposed quarantine. In any event, employers are prohibited from requiring an employee to use PTO before using federal emergency paid sick leave time.

While DOL provides that “[n]o employer shall require, coerce, or unduly influence an employee to use another source of paid leave before taking expanded family and medical leave[,]” DOL regulation provides that “an eligible employee may elect to use, or an employer may require that an employee use, leave the employee has available under the employer’s policies to care for a child, such as vacation or personal leave or paid time off, concurrently[]” with paid FMLA time

Am I required to allow intermittent leave?

DOL does not require intermittent leave under the FFRCA; however, an employee may be allowed to take intermittent leave if there is an agreement between the employee and the employer. For example, ABC Corp. might agree to allow Kate to take a few hours of paid sick leave or paid FMLA in the afternoons so she can homeschool her children during the COVID crisis, assuming that their schools are closed and she has no other suitable person to help her.

NOTE: Intermittent leave is generally permissible (with an agreement) for employees who are teleworking. For employees who must report to a worksite, intermittent leave is permissible if the reason for intermittent leave is to provide care for a child due to a school or daycare closure. But intermittent leave is not permissible for leave taken for other reasons. Fisher Phillips providers further guidance here.

Am I required to pay for an employee out on leave after they have exhausted federal emergency paid sick leave?

Yes, if the employee has unused state or local paid sick leave, or if the employee has unused PTO.

Additionally, the FFCRA has amended the Family Medical Leave Act (FMLA) to require paid leave to qualifying employees who are unable to work because their children are unable to attend school or daycare as a result of COVID-19. Under these new rules the employer must begin providing FMLA for these parents at 2/3rds the employee’s usual rate of pay or salary; however, the benefit is capped to $200 per day and $10,000 in the aggregate.

NOTE: FMLA usually applies only to companies with 50 or more employees; however, under the FFCRA, paid FMLA leave requirements apply to small employers unless they qualify for an exemption.

When does an employee qualify for paid FMLA leave?

Any employee who has worked for at least 30 days is entitled to take job protect FMLA leave to care for a child when their school or daycare is closed as a result of the COVID-19 pandemic. This applies to any business with fewer than 500 employees.

How long must I provide paid FMLA for employees caring for children home from school or daycare as a result of COVID-19?

FMLA provides job protected leave for up to 12 weeks for qualifying employees. While the FMLA does not usually provide for paid leave, the FFCRA requires employers to begin paying for leave related to child-care after the employee has been out of work for ten days as a result of a school or daycare closure. Required paid FMLA leave must cover 2/3rds the employee’s usual wage or salary and is capped at $10,000 over 12 weeks.

NOTE: An employer may choose to provide full pay but is not required. In any event, they may only pursue tax credits for 2/3rds of the employee’s usual wage or salary.

If an employee takes FMLA leave and asks to return to work, what are my obligations as an employer?

Under prior FMLA law, the employee must be restored to either their former position or an equivalent position. A position is equivalent only if it virtually identical to the employee’s previous position, including pay, benefits, job duties, schedule, and worksite. The returning employee must be reinstated immediately once the employee reports back for duty. However, the employer may require the employee to provide advance notice of a return date. Reinstatement may not be required if the employee can no longer perform an essential function of the job – in which case they may be entitled to reasonable accommodations under the ADA.

DOL regulation allows an exemption from the usual reinstatement rules for employers with fewer than 25 employees if the following four conditions are met:

• The employee took leave to care for his or her son or daughter whose school or place
• of care was closed or whose child care provider was unavailable;
• The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to
• COVID-19 related reasons) during the period of the employee’s leave;
• The employer has made reasonable efforts to restore the employee to the same or an equivalent position; and
• The employer makes reasonable efforts for a year to contact the employee if an equivalent position becomes available

How long should I maintain paid leave records?

DOL requires employers to maintain paid leave records—including any determination that the business is exempt from providing paid leave—for at least four years. But it may be advisable to maintain these records longer. You should consult your CPA or tax attorney.

Other Wage & Hour Questions:

Can I reduce an exempt employee’s salary to cope with cash-flow issues?

DOL guidance provides that an employer may reduce an exempt employee’s salary only prospectively. But a salary reduction must be for a bona fide business reason, and “not used as a device to avoid the salary basis requirements.” See DOL Factsheet No. 70

That said, employers should understand that there are now tax incentives for retaining existing wage and salary thresholds. You should talk to your CPA about changes under the CARES Act.

Do employers have to pay employees their same hourly rate or salary if they work at home?

Assuming you do not have an employment or union contract in place with the employee, non-exempt, hourly employees must be paid for the hours they actually work, whether at home or at the employer’s office. Current FLSA laws still apply, so employers are required to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Therefore, hourly employees should be tracking and reporting their time to their employer.

Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. Please be sure to check your state wage and hour law for any additional requirements.

How do I track the time of my non-exempt, hourly employees when they work from home?

Under the FLSA, non-exempt, hourly employees must be paid at least minimum wage for every hour worked and one-a-half times the rate of pay for any hours worked over 40. Employers should require employees to submit their work hours each week and have a policy in place that prohibits underreporting or over-reporting of time. Time sheets should accurately reflect that the employee took required meal and rest breaks. Additionally, employers should consider making sure that the employee cannot work overtime without prior approval.

Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)? 

For non-exempt, hourly employees, the employer must assure that any work-related expenses the employee covers does not result in reducing the employee’s earnings below the required minimum wage or overtime compensation.

Employers should also be aware that state law may require the employer to provide reimbursement to reasonably cover the portion of an employee’s cell phone or internet bill, or other such expenses, if they are required to work remotely. For more guidance, check-out our recent Wage & Hour webinar here.

Financial Questions:

Can I receive unemployment if I’m self-employed?

Unemployment insurance is not usually available to self-employed individuals. But, unemployment insurance has been expanded—temporarily—under the CARES Act to cover independent contractors and the self-employed during the COVID-19 crisis if they cannot continue their work remotely. 

Will there be tax relief?

Yes, there will be tax credits for employers that provide paid sick leave or paid FMLA. There is a refundable tax credit for 100% of qualified paid sick leave wages and qualified family leave wages paid by an employer. These credits are permitted against the employer portion of Social Security taxes (This now includes costs for group health plan expenses and Medicare and HI taxes too – meaning the total credit now covers the full 7.65% employer-side payroll tax liability).

For the self-employed, there is a refundable tax credit for 100% of qualified sick leave wages for individuals in quarantine for coronavirus, or 67% when caring for a quarantined family member or child whose school or place of care was closed because of coronavirus. This tax credit is allowed against income taxes. Self-employed individuals may also take a refundable tax credit for family leave equal to 100% of qualified family leave wages.

Additionally, the CARES Act provides additional tax incentives for businesses that maintain employee salaries and wages during this time of crisis. Consult your CPA for more information.

The IRS has automatically extended the filing deadline for all taxpayers until July 15, 2020 for up to $1 million of their 2019 tax due. Many state and local governments are likewise extending filing deadlines, but each taxpayer should consult with their local taxing agency for accurate updates.

How do I take federal tax credits for paid sick leave or paid FMLA?

Most employers pay their quarterly payroll tax obligations by filing a Form 941. Businesses may take immediate advantage of the new paid leave credits by retaining funds that would otherwise go to the IRS. Employers may retain both the employer’s and employees’ shares of Social Security and Medicare taxes, as well as withheld federal income tax. If an employer does not have sufficient withheld Form 941 funds, they may submit a request for an accelerated payment from the IRS. The IRS expects to release these forms soon.

Example: If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments, and file a request for an accelerated credit for the remaining $2,000.

I am unsure if I am properly taking the credit, and I am unable to access any guidance to address my situation. Will the IRS go after me?

The IRS has stated that it “will not bring an enforcement action against any employer for violations of the Act so long as the employer has acted reasonably and in good faith to comply” for a 30-day period. Instead, the IRS will focus on “compliance assistance” during this time.

Federal loan programs designed to help small businesses survive the coronavirus pandemic are in trouble.

The Paycheck Protection Program, launched April 3, has run out of money—with just 4% of Connecticut small businesses approved for these critical loans.

With small businesses across the state running out of time, the U.S. Congress is deadlocked over adding more capital to the program.

And applications for another vital emergency funding source, the Economic Injury Disaster Loan program, were also suspended after it ran out of money.

Take a moment to reach out to Connecticut’s Congressional delegation, and tell them to do the right thing by Connecticut’s hard hit small businesses.

Please act today and contact both Senator Richard Blumenthal (202.224.2823 or use this email form) and Senator Chris Murphy (202.224.4041 or use this email form).

And also contact your U.S. House Representative:

• Rep. John Larson (CT-1): 202.225.2265 | email

• Rep. Joe Courtney (CT-2): 202.225.2076 | email

• Rep. Rosa De Lauro (CT-3): 202.225.3661 | email

• Rep. Jim Himes (CT-4): 202.225.5541 | email

• Rep Jahana Hayes (CT-5): 202.225.4476 | email

Please contact both senators and your representative today—Connecticut’s small businesses cannot wait any longer.

As guidance and additional details regarding the PPP have been released and clarified, we have amended the loan toolkit to include these updates. You can download the current version here, and review the specific changes that have been made below:

• 1099 employees and federal taxes were removed from the calculation
• Interest rates and term years were changed