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Friday, March 20, 2020 Colleen Flynn and Alan GassmanWhat You Need To Know About The Paid-Leave Mandate Laws Enacted March 18Unknown Speaker 0:42 Good afternoon or early evening This is Alan Gasman. It is Friday 6pm March 20. It's a historic event. There are hundreds of you who have joined us for this webinar on how to handle employee situations. view of the corona virus. We're having some technical challenges but we've come through to appear here. I am in quarantine myself because my wife and I just got back from a vacation in South Africa in South America. So we decided we would not complicate things for our employees by going to the office. I'm in a rental home as a matter of fact, and I am so pleased and appreciative to have Coleen Flynn here with me. Colleen Flynn who does not have a webcam working is in her home. And she is a very experienced and very talented employment lawyer. And Colleen and I and Ian McLean, a very sharp law student from Stetson law school, have been burning the midnight oil to understand and explain the new paid leave benefits rules, which were signed by President Trump on Wednesday. These are going to have a big impact on how We and our clients handle employee matters. But before I get started, I want to mention that what's really important right now is to be level headed, to be called to be a sounding board for clients, and to help encourage people to do what's right to do what's right for customers to do what's right for employees, and to do what's right. For businesses. It's very easy to get carried away and say the law says this. So I have to do that. We don't have to make these decisions immediately. But we do have to understand these rules. And I think that you'll find that Colleen will do a great job guiding us through these. You will also find that in one hour, we can't explain it all. And that there are issues in this legislation. There are some vague areas there are some areas there that we're going to need guidance from almost Immediately from the government, and we're probably not going to get that guidance as soon as we need it. We, Colleen and I are going to work very hard to answer all of your questions. You have our email addresses on the screen there. We hope you'll send us emails with further questions, and we'll work hard to answer all of them. We want to thank Steve Weinberg and his team for making this presentation available at no charge to all viewers. You can please have all your friends and all your colleagues, go ahead and go to the website or we will give you where that is to review replays of this which will be available at approximately 7pm. Eastern Standard Time. So we're going to go to slide six now. And Matt, if you can move to slide six. Coleen, welcome to the Lindberg family. And take it away. Thank you.Unknown Speaker 3:57 Thank you. Well, good evening. And thank you, everyone, for Joining us tonight, I hope everybody is doing well and doing what they can for themselves and their employees to try to muddle through this really unprecedented situation. So not only do we have this unprecedented health crisis or pandemic, as we all are calling it, but, of course we have resulting issues. How do we handle our employees? What I want to say is I want to echo Alan, this bill has only been lost as very late Wednesday night. Over the weekend, the house had passed a bill, this the same bill by the same title. And so over the weekend and Monday and Tuesday, we were all scrambling to of course digest that. However, in true fashion, the Senate made significant changes to the bill. So if when we get off the phone, if you are googling articles and trying to do some research on this, because you know, you have some other questions, be very careful when you're looking at those articles. That those Articles weren't prior to Thursday, because the articles that we all published monday tuesday to try to help everybody are now outdated. This is how quickly these things are happening. And as many of you know, who've dealt with employment laws, we have the initial law. And then we have the Code of Federal Regulations, the CFR that give us the guidance under these employment laws. And in this case, this Act says, oh, the Secretary of Labor will propound regulations. Well, that's not going to happen today or tomorrow. It's supposed to happen very quickly, but we don't know. There's also of course, always the possibility that subsequent legislation gets passed depending on what continues to happen, that could change this. So if you are in a situation in your workplace, that you are going to need to implement some of these things. It probably is a good idea to reach out to your advisor before you make any of these changes and just double check that what you're doing is is in compliance with the law because I will tell you That since Monday morning, I have pretty much been on the phone non stop trying to answer people's questions help them with dealing with their employees. And, you know, unfortunately, we've had lots of employers that need assistance with layoffs. So let me walk you through what has currently been passed and walk you through some practical things that have come up over this week, including what's the EEOC guidance on pandemics is we actually had guidance from the EEOC back from Oh wait, oh nine when there was a SARS outbreak. They updated that guidance and republished it yesterday. I think a lot of it is helpful with people who have questions, but let's walk start with the families first coronavirus response act. As I said it passed first on on Saturday, significant changes occurred and then late on the 18th it was signed into law. So this bill that we're going to talk about applies to all employers with up to 500 employees So those of you who are listening who say, Coleen, I'm not covered by FMLA. You know, I'm going to now don't tune out because even though you may only have 25 employees or 32 and you normally are not covered by FMLA, this specific FMLA expansion is going to apply to you.Unknown Speaker 7:20 So listen carefully and KerriUnknown Speaker 7:23 Coleen, what is FMLAUnknown Speaker 7:26 and we're going to get to that on the next slide as well. But let's, let's move to the next slide. And then we'll talk about what FMLA is, so we could get to slide seven. Slide seven, talks about who this is going to apply to full or part time employees. So we look at slide seven, and that talks about under the family first act full time employees are individuals who work basically the 40 hours a week, part time is under 40 hours and the importance of this is going to become a little clearer as we as we walk through the process because of the proration of benefits for part time employees. So moving on to slide eight by eight tells us what the original FMLA is. So this is just some background for you the original FMLA requires certain employers to provide employees with job protected leave, generally is 12 weeks, there's some 26 weeks for military. This portion of the Act applies to only employers with 50 or more employees. And you're only covered if you have 60 or more employees within the 75 mile radius. So that's our original act that is going to be implicated and expanded by the legislation. Slide nine, just a little background on the ABA, because as you can imagine, the ABA is going to be implicated and that's what we're going to talk about towards the end. So those are the two laws we're really thinking of when we think of this pandemic and how we Deal with our employees.Unknown Speaker 9:02 So slide 10. Slide 10.Unknown Speaker 9:04 I'm not going to sit here and talk about right now. It's maybe something that you might want to look at after this presentation. And I believe it was Ian who put this chart together under this act that was passed on, on the 18th. There's two provisions, the emergency paid sick leave Act, which we're going to talk about, and then the emergency Family and Medical Leave Act. These are going into effect on April 2, and they will Sunset at the end of the year. So as we talk through this, keep in mind, this is not a law that's going to be on the books forever as of this point. It is not expanding any other provisions of FMLA. It is just this little provision that is being added till the end of the year. So moving on to slide 11 Let's start with the emergency paid sick leave that mergency paid sick leave Act says that full time employeesUnknown Speaker 9:58 will get up to 80 hours of paid sick leave.Unknown Speaker 10:02 part time employees get the average hours the employee works over a two year period. So before you can make them use any other paid leave, they have to get this. So you can't say I'm not going to pay you under the paid sick leave because you have you know, 100 hours in your PTO bank go use that.Unknown Speaker 10:21 You may not do that,Unknown Speaker 10:23 okay, and no length of employment is required to receive paid sick time. So if the person's only worked for you for six months, they're still entitled to do that. And this paid sick time is not going to carry over. So if they don't use it before the end of the year for something that is covered under the sick leave that they don't get it paid out or if they quit, you don't owe it to them. So moving on to slide 12. What are the reasons the company can take leave? Yes.Unknown Speaker 10:51 Let me ask the question. Can we make can we force them to use their PTO until April 2 when the law takes effect.Unknown Speaker 11:02 Sure, as of this moment in time, I would tell you yes, there was an initial language of making this leave retroactive to January 19.Unknown Speaker 11:13 That was in the original bill.Unknown Speaker 11:15 For the house version. When we have the senate version, the Senate version only has certain portions that are retroactive. However, this is one of those, however, is when the regulations come out. They could say that any need that qualifies dating back to January 19, is covered. So you may thenUnknown Speaker 11:36 be recategorize, categorizing itUnknown Speaker 11:38 as paid leave under this app, which is important to monitor because as we're going to discuss, you're going to get a tax credit from the government for the amount you pay under these leaves. So it's very important that you're monitoringUnknown Speaker 11:52 this paid leave.Unknown Speaker 11:54 And we can talk about this more, but there are also supposed to be regulations that will provides the hardships provided if there's cashflow problems for very small businesses making these payments, because otherwise my understanding at this moment is that it's going to be capped credit against the employer share Social Security. So, you know, watch for that and watch for what some of these hardship exemptions are going to be. And we're going to watch for what the regulations say aboutUnknown Speaker 12:26 retro activeness of thisUnknown Speaker 12:29 of this portion of the law.Unknown Speaker 12:32 So when we look at slide 12 512, isUnknown Speaker 12:36 what are reasons that somebody could take leave under the emergency paid sick leave at the first three reasons are number one, the employee is subject to a federal state or local quarantine order.Unknown Speaker 12:51 Number two, the employee has been advisedUnknown Speaker 12:53 by a health care provider to self quarantine. And that may be because they don't have a test so they don't have the time. test results, but yet they have symptoms. The first one could be, I've come back from China, so I have to go into a quarantine or I've been in a cruise. There are certain requirements for people who are traveling from certain areas to be quarantined. And then the third is that the employees experiencing symptoms of cobit benteen. And so any of those reasons the employees would be paid at their regular rate, up to a maximum of $511 per day. And that would be obviously do the math, it would be a total of $5,110 for the two weeks for the full time employees. Now, obviously, if you have a part time employee, you then prorate it as we discussed at the outset. So that's for two weeks or 80 hours. And so for those reasons we're required to pay that. It doesn't say they have to have a diagnosis. Because we all know that's quite difficult. Now, the question has been arriving.Unknown Speaker 14:01 What if there's a shelter in place order?Unknown Speaker 14:05 Well, that's not a quarantine order that is different. And so we were using all these terms between quarantine isolation, shelter in place. And then I actually saw cnn article today online about the difference between what those terms mean. And so right now, we don't really, you know, we're sort of all muddling through all those things. But when it says quarantine, you know, I'm going to read that right now as meaning Florentine. And so, those are the reasons that somebody would be entitled to their regular rate up to a maximum of 511 for the 80 hours. Now as we move to slide 13, here, we would see qualifying reasons additional qualifying reasons relieve under the emergency paid sick leave, act, and those are that the employees caring for an individual subject to a federal, state or local form. To order they're caring for a son or daughter if the school or childcare is closed or unavailable, are the employees experiencing any other substantially similar conditions specified by HHS.Unknown Speaker 15:13 And as you canUnknown Speaker 15:14 imagine, we don't have what those are. But I would suggest to you that number six is also attempting to keep people out of the workplace who have symptoms that may not be the symptoms that we're regularly thinking of is cobit 19 symptoms because, you know, the symptoms have been all across the board, and we do not want people in the workplaceUnknown Speaker 15:37 who are sick.Unknown Speaker 15:39 So we're trying to, in my opinion, that was the goal of this act by Congress. And under this provision, if you're taking leave under this provision, you are entitled to be paid your regular rate for the 80 hours, up to $200 per day. So if you know my regular rate is 15 hundred dollars a week, I'm still only entitled to 200 per day, under these three reasons. Under the prior three reasons, I would be entitled to my entire regular rate for those 80 hours, because it's below the max of 511 per day.Unknown Speaker 16:23 So when we look at slide 14, slide 14,Unknown Speaker 16:29 is talking about the special rules for the part time employees. So if you have a part time employee, I think what a lot of people read this initially, they saw the ad hours and they thought, well, that person only worked 15 hours. How do I handle that? So here's what the Act says regarding if the part time employees schedule varies. So this is how you would calculate the amount of hours they would be entitled to. So if their schedule varies such that you can't decide The number of hours they would have worked if they hadn't taken paid sick leave. So let's say that, you know, it's easy. Let's say my receptionist works 20 hours a week for every week. We only have her there in the morning, well, then it's pretty easy for me to decide what her hours are. But let's say that, you know, I'm a part time employee, some weeks I work 10 some weeks I work 20 maybe some weeks I work 25 then what they're saying is that you use the number equal to the average over the six month period. And then you you basically take an average you do what's fair, you can't say, oh, that week that you were date, that's your normal working hours, we're gonna pay you eight. So that's how we would calculate when we haveUnknown Speaker 17:43 the part timers there.Unknown Speaker 17:47 So if we move on to the next slide, we have slide 15.Unknown Speaker 17:53 So we're going to now move on to the portion of the Act that is talking about this emergency family In medical we back. So this is really what people are struggling or employers I should say, who are normally under the 50. And don't, don't deal with FMLA are struggling with. And even employers who have more than the 50 and who normally deal with it are trying to wrap their head around the interplay between the normal provisions of the Family Medical Leave Act. So, under this emergency Family and Medical Leave Act, this is going to apply to anybodyUnknown Speaker 18:35 up to 500 employees.Unknown Speaker 18:37 So everybody, even if you're normally not covered by FMLA, you're going to be covered by those employees who have worked for at least 30 days and have a qualifying reason are covered by this portion of the Act. So my big employers out there are normal one year and 1250 hours work that does not apply forUnknown Speaker 18:57 that. SoUnknown Speaker 19:00 Under this portion of the Act, they get 12 weeks job protected leave for the qualifying reason. And that is that the employee is unable to work or telework, due to the need to leave for leave to care for a son or daughter under 18 if the school or place of care has been closed, or the childcare provider is unavailable due to cobit 19. So obviously, my daughter's school is closed here in Pinellas County where we are all sitting or where I am sitting. And I think Alan's sitting there too. And right now the school is closed through April 15. But I can work from home, so I don't need to leave. From my job. I can work from home, I can tell a work we have technology, but some people aren't able to do that. Right. Some people have to be at their desk. Some people just have to be at their place of work at the time. And so this law is providing them with 12 weeks. Job protected leave to care for their child or supervise the virtual school, as is probably a lot of us are trying to balance that as well right now, or if you have small children toUnknown Speaker 20:15 care for them.Unknown Speaker 20:17 So that's what this access. So if we look at the next slide, slide 16Unknown Speaker 20:24 we see that under this Act, theUnknown Speaker 20:26 first 10 days can be unpaid. However, if an employee has has accrued some PTO they can use that they can use that. Also, the employee can use the emergency paid sick leave to cover this emergency FMLA leave so that the first 80 hours is paid. That little caveat there really threw some people off. Some of my employer clients were saying, Well, the first 10 days are not paid. Why am I paying the first 10 days because you're paying Paying the first 10 days under another law. So let's say it's me calling, I cannot work at home, I don't have that capability. I need leave. I'm not sick. I don't need to care for somebody who is sick, I don't need to quarantine. But I need those 12 weeks because my daughter's school is closed. So I am going to use my first two weeks, I'm going to substitute emergency paid sick leave. So my first 80 hours are going to be paid at my regular rate maxed out at 200. And then my next 10 weeks are going to be paid at two thirds of my regular rate maxed out toUnknown Speaker 21:39 200 a day. Now,Unknown Speaker 21:42 some people are saying, well, this just doesn't make sense. Why isn't it paid? So hypothetically, let's say this,Unknown Speaker 21:48 so I guessUnknown Speaker 21:50 I come back from I went with Alan and I need to sell I need to quarantine my doctor has said you have some symptoms. I'm putting you in quarantine. So I'm going to use my emergency page Please,Unknown Speaker 22:01 for myUnknown Speaker 22:02 80 hours of quarantine or my 80 hours of work while I quarantine for two weeks, so then I'm going to get paid my full rate up to $511 a day for my 14 day quarantine. But then guess what, when I come out, my daughter's school is still closed. Now I'm going to go on my two thirds, leave, or two thirds pay for the remainder of that emergency family leave that up to $200 a day. So I can stay home while my daughter has to do virtual school care for her. So that's that's how that would be. Now, any of these laws, any of these laws, we cannot force them to use the leave under these circumstances. We can't interfere with their right to take the leave under the emergency paid sick leave. There is a provision in the law saying that if you interfere and you don't And you don't allow people to take this leave or you don't pay it, it's really if you do not pay it, it will be deemed a violation as if you did not pay minimum wage to that person for the day under the Fair Labor Standards Act. And therefore, not only do you owe the wages, you also owe double wages and liquidated damages under that app. So they're trying to prevent employers from you know, trying to figure out ways to skirt for owing this money to these employees. So, they have written penalties provisions in there.Unknown Speaker 23:35 So when we look atUnknown Speaker 23:36 the emergency Family and Medical Leave Act, we let's see if we go on to our next slide.Unknown Speaker 23:45 The next slide is talking aboutUnknown Speaker 23:48 the part time rule for the emergency Family and Medical medical leave portion. So again, same thing We're going to average that we're gonna, you know, go from there. That's exactly what we do for FMLA. Normally, when we have people that need to go on, go on FMLA, we look to see if they're eligible, and then we we handle it accordingly. So, I will tell you that those are really the bigger issue, the biggest issue that I've been getting calls on. Now there is a provision in the act that says an employer can make an exception and not extend this to certain health care workers. It's basically to doctors. And so if you are a health care provider, and you have any questions on that, and that's something you want to reach out to your healthcare lawyer on. I believe the intent of that is to say these health care workers are essential and you know, we can't have them going home and therefore, they're not going you as an employer have an option on that. I don't know as the week's go on if the regulations could come out could come first. And even say, you know, we're going to say that delivery drivers or truck drivers or whomever are essential workers thatUnknown Speaker 25:11 you know need toUnknown Speaker 25:13 we that we can't pay them that and that they need to fall under the special exemptions under the under that act. So as the regulations continue to come out or when they come out and as we begin to see developments on this, these things could change. I mean, they are they are just changing, you know, right before our eyes as we sit here, like I said, we all thought we understood this act this weekend. But it did change. So we we need to just keep watching it. I do want to also point out to some of you who may also be very concerned that this act also contains a provision that allows the secretary of labor to issue regulations to exempt small business businesses with fewer than 50 employees when the FMLA expansion would jeopardize the viability of the business as a going concern. Now, of course, we have no guidance on this. There's no guidelines in place to talk about what any of that means. But it does say that in the app, and we would expect some some sort of guidance on that. Now, with respect to the exemption under health care providers, it says that it also allows the Secretary of Labor authority to exclude certain health care providers and emergency providers from the definition of eligible employee and it also allows employers to elect to exclude a healthcare provider or an emergency responder from the FMLA expansion. And a healthcare provider would only be as defined under the FMLA Act, which in summary is a Doctor of Medicine or osteopathy, who's authorized to to practice medicine or surgery by the state in which the doctor practices or here's also the key, any other person determined by the Secretary of Labor to be capable of providing health care services. So if you're in a health care business, you definitely want to watch what the regulations are going to come out and say over the next week, because you know, you may not be able to grant this leave from a position that you need these health care providers because they're, you know, first responders in thisUnknown Speaker 27:48 the repairing, you know, the big trucks that are shipping our groceries and all of the toilet paper that we all need and hand sanitizer and medical supplies. So we need to watch with these deaths. missions are when they come out over the next few weeks or hopefully week, but, you know, things are things are changing rapidly. So we need to make certain that we're, you know, yes, you know, watching these things. So here's the here's a few other things just to keep note to keep notice. Unlike the typical FMLA, there's no time period for for the employee giving notice and the employee has to provide only as much notice as is practicable. So there's no also record keeping or certification requirements. Yes, as many of my larger employers who are listening know, we have forms from the Department of Labor that we all fill out and give people when they want to go on FMLA when they want to come back. Easiest thing is always to use the DLLs forms. So hopefully they're going to give us forms but I think in this crazy time, it may just be you know, I tell you my daughter's in the field. Great in Pinellas County, and you know, the school is out. And so at that point, that that may just be enough. So just remember, if an employer has 50 or more employees, then the employer is going to be liable, just like they would be under the normal Family and Medical Leave Act if they interfere with someone's right. Or they don't provide this lead. So you're my my bigger people who already know how this works. It's the same enforcement that applies to you for the other provisions of the FMLA is going to apply to you for this. If you have fewer than 50 employees, you're going to be exempt from private action. But you may be liable under action taken by the Secretary of Labor, meaning the Secretary of Labor can sue you is basically what that means. And somebody today on the phone said, Well, how likely is that and I said, I have no idea because this law has been in effect for you know, 24 hours, so nobody's been sued under it. So I honestly don't know. But that is that is what the law says. So, the other thing I want to talk just a moment about before we move on to some other things that are a little bit more practical and your work in your workplace over these next few weeks, is thatUnknown Speaker 30:20 we are going to haveUnknown Speaker 30:23 some form of an employer notice requirements under the emergency paid sick leave. There is a model notice which is going to be provided by the Secretary of Labor, supposedly on March 25. So let's see that's Wednesday. And it's going to need to be posted in a conspicuous place where you post everything else, you know, Are you injured, all those other signs that you're required to post in the workplace, you are going to, you know, supposedly be required to post this so that employees are aware of their rights under this act. So under the these act, you know, it's unlawful for you to discharge discipline or discriminate against any employee who takes paid sick leave in accordance with this Act, or who filed a complaint with the Secretary of Labor, just like most of our other employment laws, very similar language. And so we talked about this at the outset that an employer who fails to provide the paid sick leave, or who unlawfully terminates an employee in order to let's say, avoid this. So I come in, I say you, I need to go and quarantine and you say, I'm firing you. That's going to be a violation. So you can be held liable for unpaid minimum wages, liquidated damages and prevailing parties, attorneys fees, and so it's going to be considered a failure to pay the paid sick leave is considered a failure to pay minimum wages under the FSA. So there's a pretty harsh penalty. If you If you do anything to interfere with someone's right under the emergency paid sick leave app or you fire them or you don't pay that, so, you know, just just keep keep that in mind. And likewise under that FMLA with my over 50. Folks, you know, you know, you can't interfere, you can't fail to reinstate them if you have a position. And so, you know, just be mindful of that. Now, the question I'm getting is, what do I have to do layoff? What if I have to close my business? What if I'm a restaurant in Florida, that I'm now only allowed to do takeout? I don't mean I'll be used to servers. That's different. You're not terminating these people in order to avoid pain or paid sick leave or to avoid giving them the expanded FMLA you're doing a legitimate layoff. And even under normal time, the FMLA only mandates reinstatement if you know the person's job is there now there are Some additional provisions under this expanded act for smaller employers who aren't typically covered by the act. But those are a little bit different. And we really want to wait for the regulations. But if you have to make terminations or reductions in ours, as long as you're not targeting the people who you are speculating are going to try to use their paid leave that they're legally entitled to. You have if you have to do a layoff, you have to do a layoff. But what you can't do is say I'm laying you off, because I don't want to have to end up paying you because I know you have a kid and you're gonna need this time off under this act. So, you know, don't interfere with anyone's rights. But if you are legitimately shutting down to me, this is that's completely different than somebody requesting time away from work. These new provisions in the law are for people who need time away from work, you're closed down, there's no work if you shut everybody down for two weeks because You have no business because you're a restaurant or you're the gym, my gym is closed now. And soUnknown Speaker 34:07 these are very differentUnknown Speaker 34:08 provisions between I'm closing and laying off my people versus I need leave from work. And, you know, this is what I'm legally entitled to. Now, the trade off is that the government believes that they are paying for this because they're going to give businesses tax credits to cover the amount that they're paying out in this legally protected leave. So what I can tell you is I've told my my employer clients all this week is keep track of it. Even though right now we don't believe that it's going into effect till April 2. If those regulations come out and say it's retroactive to January 19, and you know, we have to recategorize and now instead of me using my PTO for this past week, when my child was out of school, I'm going to use my emergency sick leave to get my PTO back. You're going to catch eyes It is emergency sick leave, and that's going to go in your tax credit bucket. So just watch it because I don't know what is going to happen. But if you are properly categorizing these things, it will make it easier for you to hopefully secure tax credits to to pay you back for what you excuse me pay out in Stickley benefits. So some of the other questions if we go on to the next slide, I think it's 18. If we look at some of the other things that we've been facing, in questions from our management side clients this week, I will tell you that they a lot of them are you know, what is going on in my workplace and what can I do what can I not do? I we have six people etc. So as I mentioned earlier, the ESC pandemic preparedness and the workplace and the Americans with Disabilities Act is online. You can type that in and the whole doc It will come up. And so you can see that it was originally back from, I think 2008 2009Unknown Speaker 36:10 whenUnknown Speaker 36:12 when the SARS epidemic came about, but now they have updated it to as of yesterday. So here's the big questions that we're getting. So how much information can an employer request from an employee who calls in sick because you're worried about the rest of your workplace? Because as most of you know, under the ADA would be very careful when we're asking people about their medical condition. But in this instance, we the EEOC guidance says that during the pandemic, Ada covered employers may ask employees if they're experiencing symptoms. So for cobit 19, you know, here are the symptoms shortness of breath, fever, cough, and you must maintain all that information confidentially. So, the one word that is not on that slide is an important word. You know, confidentially, you know, we have to always do things confidentially, but but in this instance, we're balancing our OSHA requirements to maintain a safe workplace for people. So it's important to know that yes, under these circumstances, you are given more leeway to ask information, but we still need to be very, you know, cautious about it.Unknown Speaker 37:22 So onto slide 19. You know,Unknown Speaker 37:26 medical exams are typically difficult for employers to do because of all of our ABA guidelines. And quite honestly, we all we really want to know under normal circumstances, if somebody is capable of doing the job with or without a reasonable accommodation, but in this case,Unknown Speaker 37:45 you know,Unknown Speaker 37:47 I want to make sure they're not sick when they come to work. I don't actually care if they have other medical conditions right now. Who cares if someone has a thyroid disorder or high blood pressure? What I want to know right now is do you have 19 and so generally we would say that taking somebody's body temperature is a medical exam that you need written authorization, it has to be consistent with job necessity or it has to mean there has to be a reason for it. But now, under these circumstances because the CDC and state and local local health authorities have acknowledged it, employers may measure employee's body temperature however, you have to be aware what the SI tells us is that some people with it may not have a fever but actually had a phone call with a client today and they have a very large workplace. A lot of people smallish smaller environment not like an office like mine and Johnson Pope where I have you know, 200 nice square feet all to myself when I close my door. So you know, they they are going to probably Institute taking people's fever and making certain to keep people out of the workplace who have fevers can the other question I got is somebody said, you know, we've got employee you know, got this employees pretty special. coughing hacking, that's fine. Anybody who have symptoms of it, you know, should leave the workplace. And you can, you can send them home. So, keep that in mind because we always are balancing our, you know, our OSHA, you know, we want to keep everybody safe, we have to provide a safe workplace obligations with, you know, the ADA obligations. But in this case, the ABA obligations are going to be lessened and the EEOC is not going to take such a hard line position under the ABA with respect to medical examinations during a pandemic. And I really mean, we could go through that whole their full question and answers on that document for a couple hours because it's actually very, very good. So I would tell you to go online and get that document because there's probably a lot of questions on there, you know, that may come up, and they've answered them, and in my opinion in a time like this, if you do what they say, you know, you You're not going to get in trouble. You're going to pass all of this EEOC guidance. Now, if you know if it's a squirrely situation, and there's not an exact question and not an exact answer, then of course, seek out advice from your legal adviser. But But know that right now, we are all trying to do the best we can to balance not only employee rights, but the rights of our other workers in our workplace and just general fairness. So serve my two cents on all these very unique situations that have come up the past couple days. Okay.Unknown Speaker 40:33 So if we go if we like all money,Unknown Speaker 40:36 yes. How Coleen when a employee gets the virus, because of medical office has elected to stay open and to see patients and the receptionist gets the virus. Is the receptionist cause of action against the practice going to be limited by workers comp? Or do employers need to worry about how carefully Need to try to protect our employees?Unknown Speaker 41:03 It's a great question, Alan. So generally, as we know, workers comp covers, work related injuries and sometimes industrial or occupational diseases, that sometimes we look at loss of hearing things like that. I'm going to tell you, I don't really know the answer, because I don't know at the end of the day, if somebody is going to be able to prove conclusively that they got it at work versus community spread, and so I don't know how workers comp is going to treat that. Now generally, and employees in Florida and Florida I don't know where we have people listening. Generally, if an employer has workers comp and an employee is injured or suffers a covered injury, something covered by workers comp in the workplace that an employer and employees remedy is work comp, and that they can't go outside and that's their sole remedy. So You know, I think that this is all unchartered territory. But I think that, you know, could be very difficult for somebody to prove that they may got something in the workplace at this point in time. And honestly, I don't even know if as this disease progresses, I mean, I've heard that they're going to not even be able to do the tracing to try to figure out where people got it because it's going to be so prevalent. So at that point, I don't know how an employee would prove that they got it at work. So, you know, it's a very interesting issue. It's almost like a law school exam issue. And it's definitely something that, you know, employers should should be aware of is out there. That other issues Yeah, sure. If we go into the next slide, and we look at number 2520. Does the ABA allow employers to require a doctor's note certifying their fitness for duty, so this would be justified under the ADA standard for disability related inquiries, so, you know, if you're if you typically are, you know, require a fitness for duty or return to work note when people have been out, you know, for a while due to illness, it would be fair to say, you know, I need I need to return to work know, that you you can come back to work that that nobody thinks you are sick. Now somebody wanted and somebody called and said, Well, can I ask them to get a test to make sure they don't have it and have their doctor write him a note that they don't have it and I and my response was that, I don't believe that's even going to be possible because unless you meet certain qualifications, you're not even going to be entitled to a test. So you can ask them to bring you a doctor's note that basically says, you know, I'm not exhibiting any symptoms, and I do not believe that this patient, you know, they can't be returned to the workplace or you know, is experiencing any symptoms that would be communicable in the workplace. But, you know, I don't think that you're going to be able to get a note that says Calling doesn't have cobit 19 because nobody's going to test me. If I had a cold and I'm coughing or here in Florida we have all the pollen right now. And I'm not feeling well for a few days and then I get over it and I go to the doctor, my doctor says You look fine, you can go back to work, he gives me a note. That note is not gonna say I promise you she doesn't have cobit 19. So, you know, that's that's sort of the problem with all this is the lack of testing. Okay, on the next slide, we have 521 So if an employer is hiring so I shall right now Amazon is looking for 100,000 people and Costco and Publix, they're, they're apparently hiring you, you can screen them after you make a conditional job offer as long as you're doing it for everybody. So as you know, what you're saying is, you know, before you start, we have to make certain that you don't have this and that's just fine. And again, I still get back to you know, you can take their temperature And watch them if they're coughing or have the I have a doctor's note, say they're not, you know, contagious, which you pay for, but they're not going to be able to show you a note saying I don't have this. And again, this is the same thing again, can you take their temperature? Same thing we discussed before? You know if I'm sorry, I'm slide. Yeah, we're still on slide 21. It's the same thing. The same thing with taking the temperature which people seem to be wanting to do.Unknown Speaker 45:30 If we go on to the next slide 22.Unknown Speaker 45:34 Can you delay the start date of somebody who has who has the symptoms? Yes, no problem. Don't put them in the workplace. We don't want them there. And the last one is a good question. You know, can an employer withdraw a job offer when it needs the applicant to start immediately? I think that's the key part there when it needs the applicant to start immediately, but the individual has it or has Symptoms of it. So if they can't safely enter the workplace, you can withdraw the job offer. But remember, it's just the same as any other ABA analysis. Once you've made the job offer, can you reasonably accommodate a delay in the startUnknown Speaker 46:14 time to the person?Unknown Speaker 46:18 starting date, you know, and if you can, then I believe that the ABA would tell us that we would need to make that reasonable accommodation. But if what you're saying is that I needed to start right away, I'm Amazon and I can't. I can't, you know, live without you and other day I need you to start then I think that it would be an okay thing to withdraw the offer. Now, I'm assuming that you know, most people are not going to be in that situation. But that's one of the things now, as we talked about, things are breaking really quickly and something that happens faster. afternoon after we got these slides together for the seminar is I had a question that came up this morning and I will tell you what I answered. And then I will tell you what the Department of Homeland Security did. So the question came, I have a client, and they have a new employee starting April 13. Well, they have gone remotes to release April 15. And so the HR director contacted me and said, What in the world am I supposed to do about the I nine documentation because I am supposed to look at it and touch it and make certain it's real. And I said, well, under these circumstances, we can all only do what we can do. So I would have you, you know, get on a video chat or on Skype, or, you know, do what you can do to us, you know, to check out these documents. So, this afternoon the Department of Homeland Security announced it will be for the requirements for employers to review Form I nine documents in person with new employees. And they are now saying that employers with employees taking physical proximity proximity precautions will not be required to review the employee's identity and Employment Authorization documents in the employees physical presence, the physical documentation review will not be excused if the employee is physically present. So you have to avail themselves of the option to provide the written documentation of their remote onboarding and telework policy for each employee. So, so basically what they're saying here is you must still inspect the documents, but you can inspect them over video, conference, fax or email, and you need to obtain and retain the copies just like you do normally, when you're instructed to enter cobit 19 as the reason for the physical inspection delay in section two. So I had told my client I said, you know, look at it on video chat, have her email to you. And then make a little note, you know, pandemic, we're closed for business. And that's exactly what they want you to do. So put it in section two. And then what I said when you see her face to face, have her bring them in so that you can update it. So the next paragraph from the Department of Homeland Security says once normal operations resume, all employees who are on boarded using remote verification must report to their employer within three business days for in person verification. And then once they've been physically inspected the documents that is not the person once the documents are physically examined, you add that date to section two. And they have put this provision in place until May 19. Or within three business days after the termination of the National Emergency whichever comes first. So God willing, we lift the national emergency, April 15. That means this thing expires April 18. And, you know, unfortunately, if we go to June 1, that means this expires June 4. So I don't know if that applies to anybody out there, but I just feel that everybody is aware that I do believe that government agencies are trying to work with us under these under these, you know, really unique set of circumstancesUnknown Speaker 50:22 for for all of us.Unknown Speaker 50:24 SoUnknown Speaker 50:25 those were really the main points because I wanted to touch on one of the questions that my phone is ringing off the hook on for this week. You know, we all don't know the answers to all of this, but we are trying our best and we are digesting you know, these revelations that come out on a minute by minute basis. But the other The last thing I want to touch on and then I'll let Alan jump in, if he has any questions is lots of people are questioning, you know, what, what do they do? They need to lay people off or they need to reduce the hours Fortunately, that's the reality. And here in Florida, gyms are closed, restaurants can later take out the movie theaters closed. So there are a lot of people that are getting laid off today. I mean, the restaurants closed tonight. So there's going to be a lot of people laid off. Those people are going to need to file for unemployment. Now there are there is federal funding as part of this act that was passed. That is going to all the states and it's going to be doled out between the states based on the unemployment rates on the week by week basis. And so I can't tell you how much your employees are going to get every week or even how many weeks of employment they're going to get under this expanded unemployment benefits. So that's another thing that's evolving. Some people have asked me what do i do i don't want to fire everybody but you know, I need to reduce their hours. Well, under Florida law, if there's a significant reduction in hours, then you will you will be led For unemployment for the decrease percentage in your hours. Likewise, some other questions I've gotten have been well, I have exempt managers who you know, normally I pay a salary and they work 50 or 60 hours a week, but right now, I don't have any work for them. And so as most of you probably know from other seminars, if you have exempt employees, if they work at all, during a work week, you owe them their entire salary. So if if I if I normally work, you know, however, 4060 hours and I'm paid $1,000 a week as an exempt manager, let's say, and now I don't have people to manage, you've laid off those people but you want to keep me, you could convert me to an hourly employee, and you can pay me hourly and you can say, you know, as of, you know, the next pay period, I'm converting you to an hourly employee. You will be paid X dollars an hour for all hours up to 40. And then when you work more than 40, you get paid overtime at 1.5 times your hourly rate. Now, I suspect that overtime is not going to be the issue. But yes, be careful when you're converting people from exempt and non exempt that you do it at the end of your seven day workweek period. Because under the Fair Labor Standards Act, the Department of Labor and the law looks at things in a seven day workweek. So if your workweek is Sunday to Saturday, you can't change me on a Wednesday, if I'm an exempt manager, because I've already worked part of that workweek. And so I'm entitled to my entire salary for that workweek. So what you need to do is make certain that these changes go into effect at you know, the end of the workweek, and starting of the next one. So, I mean, there are things you can do to try to keep people employed and Try to try to keep them and not have to lay them off. There are you know, there are creative solutions. And, you know, I think a lot of our clients are exploring ways to try to keep people employed. I know there are some people who have who have said, I don't want to fire you, I'm just going to furlough you because if this disorders lifted in a few weeks, I'd love for you to come back. And so those people will still be entitled to apply for unemployment because now they've gone from, you know, 40 hours a week to zero, but hopefully they will be able to maintain their relationship with that employer. You know, once once this isUnknown Speaker 54:34 this has come to an end. Those are really theUnknown Speaker 54:38 things that I have been talking about nonstop since Monday. I know it's a lot to digest, and a lot of it is is really business and operations. But keep in mind that there are you know, a lot of legal things going on there in the background too.Unknown Speaker 54:56 Colleen, can you spend a couple of minutes talking about Cobra And what how furloughing may affect the ability to keep an employee on a health care plan. Keeping in mind that are not health care law, we're not Employment Lawyers. So if you could help us up the learning curve with that.Unknown Speaker 55:16 Sure. So what I tell my clients on that one is, you know, Cobra, Ursa, all these, you know, acronyms, so when you have an employer health care plan, it's a plan that is for employees. So generally, there's requirements under the plan, you have to be employed. And typically, the plans require a certain number of average hours worked, you know, per week, over a period of time. So let's say my law firm plan, I have no idea if this is true. I'm not on it. I'm on my husband's insurance. But let's say you have to work on average 25 hours a week to be on our law firm insurance. Well, now I'm on furlough because you know, we don't need Let's say office runners, because we are all working remotely. So we don't need those folks who, you know, helped set up our conference rooms and, you know, get all our day to day things going for us at the office. So those folks, let's say we put them on furlough until we can all come back to the office. So my concern is, it's not a concern, necessarily, but you want to make certain that the way you're treating them is consistent with what your employer insurance plan says, because the the plan is probably going to have some language that, you know, they have to have worked X number of hours over a period. But if they're on leave, there may be provisions and they're most likely are there if you're on leave, you can stay on the plan for X number of months, without without working. So you want to make certain what your plan says, because at some point in time, if you furlough people for six months, hypothetically, they may not be eligible for your plan anymore, even though technically they're employees and then that was Trigger, you know Cobra and a cobra notice or continuation notice depending on the size of the employer or what state you're in, so you want to make certain that you'reUnknown Speaker 57:11 cognizant of that. AndUnknown Speaker 57:12 you want to make certain that if you do have to do a, you know, a mass layoff, if you're a, you know, hotel or restaurant and all of a sudden you're going to do mass layoffs, want to make certain that in this whole franticness that they're still getting their Cobra notice because, you know, many of them probably want to continue their health insurance benefits. So the last thing I just want to throw out there is if anybody is a very large employer, you know, over 100 employees, the WARN Act applies to mass layoffs. Typically, under the WARN Act, you have to give these employees 60 days notice, or you're liable for their their pay. There are a couple of exceptions under the WARN Act. One is unforeseeable change in business circumstances and two is natural disaster. So to me, the pandemic is not a natural disaster, but it's basically the same thing. And this is really unforeseeable business circumstances. So I've had client large clients who have just said, you know, nobody's gonna, gonna come after us under warn under these circumstances, but I just throw it out there. That is something out there. And, you know, we never know what plaintiffs lawyers are going to try to do. But I don't see under the circumstances. that this isn't unforeseeable business circumstances because even a week ago, nobody could have foreseen this.Unknown Speaker 58:36 Okay, Colleen, sometimes there can be tax savings and also advantages to converting somebody who was an employee to being an independent contractor. And now that this particular individual or individuals No longer are using the office, they're no longer under direct supervision, things can be changed, they can become more entrepreneurial, entrepreneurial and be paid more based upon what they do, rather than how many hours they work. What are the implications of right now converting an individual who's an employee to an independent contractor that would take the person out of the protection of this act. But with that, would that be problematic if the employee is willing to become an independent contractor?Unknown Speaker 59:27 Well, I mean, that's a loaded question there. Let me let me explain why. Because first of all, 90% of the time, people who are classified as contractors are really misclassified, and they should be employees. And I think that under this law, that if you're trying to change classification, so that somebody is not an employee and as a contractor, you're going to be deemed interfering with their rights to this leave. Now, if somebody legitimately says, under the circumstances, you know, I want to quit and I'm going to go become a you know, cobit nice consultant and I'll consult with you, and I'll consult with somebody else. And I'm going to set up, you know, ABC consulting firm, and I now truly am an independent contractor. But if I'm doing the same thing that I do on a normal basis, whether I'm sitting in my living room or I'm sitting at my desk at the office, I'm still an employee. So I would strongly caution people not to do that. I think it's, I think it could be interference. And not to mention that most of the time when people do that they're it's an improper classification. So I don't think that playing games like that, right now is a is a wise idea because I also think that the government is saying, Listen, we're going to give you a tax credit, there's no reason to try to do anything other than comply with the law because you're not truly paying paying for it. And if you're what you're saying is okay, this is going to be so inconvenient. operationally, well, if you're a small employer, once the regulations come out, there may be some you know, type of exemption or help for you that we talked about at the outset of this.Unknown Speaker 1:01:02 Okay, Matt, if you're on Can you move us to slide 10, please? So, Colleen, the last question I had, and I think it would be just a good idea to show us the anatomy of these rules one last time, because it can be disorienting. This chart we took from the legislative guidance, and we doctored it up a little bit. One question I got was, where did you get the $543 a day, I thought it was $200 a day. So probably there's really two or three categories on this chart. If you could just walk us through it one last time, then we can end the program and I think everybody at least can come back to this chart as being the roadmap to these rules.Unknown Speaker 1:01:50 Okay, so I don't see anything on here where you're saying 543 the $511 under the emergency page, Typically that's the ad hours. And there's different reasons for the leaves. And so the leave is maxed out at $511 per day for the the certain reasons.Unknown Speaker 1:02:18 And so if you look at this chartUnknown Speaker 1:02:22 Okay, so here we are looking at the chart now I'm, I'm looking at it here. So we have the employee being subject to the quarantine orders, they're advised by the healthcare provider to quarantine, they're experiencing the symptoms or their there, you know, those reasons, you get 500 up to $511 per day your regular rate of pay but not to exceed 511 per day. If you'reUnknown Speaker 1:02:48 taking leave for the other reasons,Unknown Speaker 1:02:51 then it's two thirds of your regular rate of pay not to exceed $200Unknown Speaker 1:02:59 per dayUnknown Speaker 1:03:01 Okay, so that's the emergency paid sick leave. And then when you go down under the emergency family medical leave, which is for the leaves if you need to stay home because your child's school is closed, that is the two thirds pay cap at $200Unknown Speaker 1:03:17 per day.Unknown Speaker 1:03:22 Okay, does that make sense?Unknown Speaker 1:03:25 That makes sense now. Is the tax credit 100% of all of this? Or do we know what the tax credit is and what it isn't?Unknown Speaker 1:03:35 And, well, my understanding and from what I read here is thatUnknown Speaker 1:03:42 division g of thatUnknown Speaker 1:03:43 of that law, if any of you guys are and I know you have some tax lawyers over there Alan's division, he provides for a series of refundable tax credits, but there are some caps on it and I and I don't exactly know what all the caps are off the top of my head. The Employers are required to provide the benefits under the expanded FMLA. And the emergency paid sick leave. And it includes a quarterly credit against the employers portion of the social security taxes for the amounts paid under these. But like I said, they're also supposed to come out with some hardship exemptions or cash flow problems that the IRS is going to supposedly, you know, take into account. Now there's also a billion dollars for unemployment assistance. And so supposedly, it says that half of the aid is going to come to the states within 60 days, and the additional funds are going to be reserved for states that have seen at least a 10% increase in the unemployment claims over the same quarter versus the prior calendar year. And so the state has to meet certain requirements, but we're also looking at You know whether they're going to start waiving certain things like waiving work search requirements and waiting periods to make it easier for people to get it. So because right now, if any of you are familiar with unemployment in Florida, there's a waiting period as well as you have a work search requirement, but the federal funds that are going to go to the states are going to force the states to waive those two thingsUnknown Speaker 1:05:26 for the time being.Unknown Speaker 1:05:28 Okay, Matt, can you go back to the cover page?Unknown Speaker 1:05:36 Okay, so, Colleen, we really appreciate all the time and effort you put into keeping us out of trouble to make sure that we are doing the right things for all of the right people. So those of you attending this, if you've been around a while, and I've been practicing law now for 38 years, we've seen a lot of crisis's. We're going to continue to see crisis and some We all thought the world was gonna end in 2007. And we all thought the world was gonna end in September 11. And we all thought the Iraqi war was going to end everything. And we're resilient and we always get through. But clients need good listeners, good analytic thinking, and realism, they are going to have to lay off a lot of employees so that that restaurant has enough money to restart in three to five months, and not take their cash flow and completely lose it. If you sit down with the client and say, How much money do you have? How much money do you have access to? How much money are you spending a week? What is your payroll, let's run the spreadsheet to see when you're going to run out of money based upon how many employees you keep, and it's sad, but the employees will be better off if they're laid off early and can come back to a restaurant Or another business that can reopen as opposed to hanging around, not really working, and then not having the business to come back to because it had to get washed out in bankruptcy. Now you have colleagues email address here, Colleen app at JP firm calm. You've got my email address if you ask me any hard question, I'm just going to forward it to Colleen. We're going to update this and we'll probably have an update webinar pretty soon. Lindberg Information Services is going to have a series of webinars that I'm helping them left on similar topics. Let us know what you want to hear about. Thanks again to Steve Weinberg and his amazing team for making this a free webinar. Tell your friends about the webinar, we'll be glad to send you a link as to where you can see the replay and have a fantastic weekend. Have your family. So okay to hug your family. You've already been in close to them. And thanks again calling.Unknown Speaker 1:08:04 Oh Alan, you're welcome.Unknown Speaker 1:08:06 You are welcome. And if anybody needs any help, you know we'll do our best to help you. A little bit of craziness right now but we will all make it throughUnknown Speaker 1:08:16 and enjoy the cocktail hour.Unknown Speaker 1:08:19 ThanksTranscribed by ................
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