How to Navigate COVID-19

General PEO| Risk and Compliance

March 27, 2020

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Navigating COVID-19

March 27, 2020 / 45:50:00

Spencer Packer All right, welcome, everyone. Want to first take some time to thank everyone for joining us today. We hope you all out there are staying healthy and safe. My name is Spencer Packer, Regional Vice President of Marketing, and I’ll be your host during the webinar over the next hour or so.

Spencer Packer This webinar will cover a wide range of topics navigating around the current COVID-19 crisis for all of our businesses and partners out there. Our hope is that we can address as many of the current concerns and questions for you as possible. For any of our existing clients that are on the call, we will be highlighting some of the programs
that are currently being implemented for you through Vensure and our PEO partners, and how to stay in the know throughout the next couple of weeks.

Spencer Packer Just a quick about us, who Vensure is and some of our PEO partners. Vensure Employer Services is the parent organization for 20-plus PEO partners across the country. Right now, our clients are in all 50 states and it’s extremely critical for us to get some of this information out to everyone, and hope that you find the valuable resources that we talk about today for you and your partners.

Spencer Packer I also would like to introduce the panelists joining me today. They have over 50 years of combined experience across a wide range, range of industries. Some of the topics that they’re going to be walking through are the “new normal,” as everyone likes to refer to it as, and some big changes that we’ll see coming from legislation at the federal level.

Spencer Packer First is Robin Paggi. She is a training and development specialist, a certified HR professional who is SHRCA-certified and SHRM-certified. She has over 20 years of experience helping clients train and develop their workforce. Also with us today is John McFarland, Senior VP of Client Development, with 13 years of PEO-specific experience, 20-plus years in the HR and leadership world, also SHRM-certified and has experience working with

a Fortune 100 company most recently. Lastly is Leo Villanueva, our HR and Compliance Manager, with 13 years of professional HR experience currently leading our HR Compliance Department and responsible for ensuring all of our clients stay compliant throughout the U.S. and in their states.

Spencer Packer So first, I’m gonna have Robin kick it off with some of the “new normal” and we’ll go from there.

Robin Paggi Good morning. We’re gonna talk about some of the things that have been in place for a while, but we have to step it up a little bit as a result of our current situation. First of all, we have to ensure that employees have a safe place to work. Now that’s nothing new. OSHA has required that of us for years. But, because of the current situation, there are some additional things that we need to do to ensure that we are ensuring employee safety.

Robin Paggi We must provide a workplace free of recognized hazards likely to cause death or serious harm. And so, one of the things that we need to make sure that we’re doing during this time is increasing our sanitizing of workspaces, making sure that employees have the resources that they need to be able to wipe their desks down, their computers down, their phones, all of those types of things, that there is plenty of hand sanitizers, that we’re communicating with employees the precautions that they need to take in order to ensure that they are staying safe and they are keeping their coworkers safe.

Robin Paggi So we’re maintaining the six-feet space difference that we possibly can. We’re making sure that we’re covering, or coughing into our elbows, or sneezing into our elbows, all of those types of things that we’ve been hearing over and over. The reason that you want to communicate these things with employees, preferably in writing, is to ensure that you are trying to provide a safe workspace.

Robin Paggi There are still some people who are not taking the situation seriously and are continuing to co-mingle. We are in California and we have a Shelter in Place order. I know that a lot of states still don’t have that, but it’s important
if you are in a state that does not have that order yet, that you are ensuring that people are following the common rules that have been established. Six feet of space in between people, sneezing and coughing into your elbow, that we’re not shaking hands–all of those types of things that those of us in California are very used to at this point.

Robin Paggi If you require a personal protective equipment, of course you continue that, but again, at this point, we might need to step it up a little bit. Especially if employees are asking for masks, or gloves, or things like that, you want to be able to provide those where you can. One of the things that we’ve heard is that providing masks doesn’t really do a lot other than make people feel safer. But, if that’s what they need to do to feel safer and you can do that, then that’s something that you should do.

Robin Paggi So, make sure on your extra housekeeping and sanitizing that you are sanitizing every single day. And one of the reasons for that is because if you’ve got somebody who does become infected and they let you know that or they let you know that they have been exposed to somebody that’s been infected, then you want to sanitize their workspace, but you want to do so discreetly so that you do not draw attention to the facts. So that’s why regular sanitizing every single day will not draw attention if somebody does disclose. And we’ll talk more about that in just a moment.

Robin Paggi Now, one of the questions that clients have asked me is, are employees still required to report to work? And, for those of us who have Shelter in Place order, the answer is no, not unless they are an essential, in an essential business. So that includes grocery stores, and convenience stores, and a variety of places. So, you can require employees to report to work if you need them to report to work. And some people are very fearful of reporting to work. And so they are saying, can’t I just stay home? Now if they can work from home, you want to allow them to do that if that is feasible. And we’ll talk more about how that’s going to work if they do work from home. But what OSHA says is that employees must report to work unless there is a threat of imminent danger. And imminent danger, according to OSHA, means that the employee fears death or immediate injury before OSHA can investigate. And for the most part, OSHA does not consider going to work, causing imminent danger. Different people have different ideas about that. But right now, we’re trying to follow the law and that’s what the law says.

Robin Paggi Now, may employers require employees to stay home or to go home if they’re exhibiting symptoms? And that’s a question that I was asked by a client yesterday, is that an employee showed up for work, she was obviously sick, the employer told her to go home, she said she can’t, she needs to work, she needs the money, she’s an hourly employee. And so the question to me by the client was, can I make her go home? And the answer is, yes, of course, you should. That’s one of the things that you have to do to ensure the safety of the rest of your employees.

Robin Paggi One of the things that people are concerned about is paying people, especially if they are working from home. And so, this is nothing new. This is something that we always have done is that, if exempt employees work at all during the workweek, they must be paid for the entire workweek. You only pay nonexempt employees, or hourly employees, for the work that they do. But a couple of issues have come up because of our current situation. One is reporting time pay.

So if employees show up for work and they appear sick, and you send them home, how much do you have to pay them? And that remains the same, reporting time pay does not change based upon this. It’s that you pay them half of their regular workday, no less than two hours, no more than four hours. So that remains the same. But if you do have hourly employees that are working from home, you want to make sure that you’re recording their hours correctly. You don’t want them to fill out a timesheet that says they work from eight to 12 and one to five because that is not an accurate recording of time. You want to make sure that they are documenting their rest periods and their meal periods.

Robin Paggi One of the things that’s anticipated out of this, is that there will be some lawsuits for people not being paid correctly. There’s always the possibility of missed rest periods and missed meal periods, lawsuits. And in California, those are the biggest class action lawsuits that we have. So you want to make sure that people are, if they can’t clock
in and out on a computer or on their phone, that perhaps they’re emailing who’s ever in charge of HR, letting them

know what time they’re starting, what time they’re going on break, what time they’re going on lunch, what time they’re clocking out for the day, so you’ve got some kind of documentation. You might want to have them sign something every day that says they did receive their rest periods and their meal periods. I know it’s onerous at this point to have it every single day, especially when this could go on for months, but, it’s important for that documentation to protect yourself a little bit later on.

Robin Paggi One of the things is that, if employees cannot work, John’s going to talk about paid sick leave and emergency family medical leave, where they can receive payment that way. So, we’ll get to that in a couple of minutes.

Robin Paggi All right. In case of contact, if an employee says that they have the virus, what do you do? And even if employees say that they have contacted somebody with the virus, what do you do?, because the steps are essentially the same. First of all, a question that’s been asked of me is, may employers take an employee’s temperature? And, you can right now, because this is new and when you’ve got a pandemic, employers can take an employee’s temperature. But, it’s probably a moot point because you probably heard by now that just because someone doesn’t have a temperature doesn’t mean that they have not been infected. However, I do know some workplaces where they are requiring employees to take their temperature every day because they’re working with kids, and they want to ensure parents that they are all healthy when they’re working with their children.

Robin Paggi May employers ask if the employee has COVID? No, they may not. But, they may ask if they are exhibiting symptoms. That’s a fine line, I know, but, that’s a government requirement and the government typically has fine
lines for us. So you may ask, “Do you have a fever? Are you coughing?” You’ll probably be able to see that. “Is there shortness of breath?” You might be able to see that. And so, you can ask about symptoms, but not about the virus itself.

Robin Paggi Now, if somebody says that they have been infected or they have been in contact with somebody, you can require a 14-day quarantine. And so, you tell them that they go home and they cannot come back. Now, do you require a doctor’s note? Well, you can, but the thing is, is that doctors are very, very busy. One of the things we’re going to tell you about a little bit later on today is telemedicine that we’re going to have available for our clients. And so, that’s one of the things that we’re really trying to push is those alternative ways of seeing about your health without making healthcare professionals even busier than they are.

Robin Paggi And, then finally, if you have an employee who says that they are at-risk because they have diabetes, or they have had cancer, or anything like that, any of those at-risk symptoms that we’ve seen on the television, you have to provide them with a reasonable accommodation. Again, a reasonable accommodation is time off work or working from home, if possible, or that they are working someplace where they’re not exposed to anybody else. So, you have to engage in the interactive process with them to try to keep them as safe as you possibly can.

Robin Paggi And finally, employee privacy. I mean, that’s one of the things we talk about our health quite a bit, and we talk about all the scary stuff that’s going on here right now, and the numbers are climbing as far as people are being infected, but we have got to protect our employees’ privacy. And so, again, if somebody says that they have been in contact with somebody or that they have been diagnosed, you’ve got to ensure that that word does not get out. Well, how do you talk to employees who have been exposed to somebody who’s disclosed, without letting them know that they’ve been exposed to somebody who has been infected? Well, you just make sure that you’re not mentioning any names, that you’re not pointing to particular offices. Again, you want to disinfect every day, so that it doesn’t become apparent if somebody did disclose that kind of information. So again, what health questions may you ask employees? You can ask them about symptoms, but you cannot ask them if they have been diagnosed.

Robin Paggi And finally, you’ve got to have any kind of health care information that you have, I mean, if you’re recording people’s temperatures, if you’re getting doctor’s notes, all of those things–that goes into a separate file from the personnel file, that’s nothing new. That’s the same as we’ve always had it to be, that medical information has to be in a separate file, preferably in a separate filing cabinet from the rest of the personnel information.

Robin Paggi So, a lot of things are still the same, they’re just ramped up a little bit in order to handle this situation. So John is up next with more information about paying employees when they’re not at work.

John McFarland So the Families First Coronavirus Response Act or H.R. 6201, from here on out, I’ll just refer to it as “The Act” that is the second stimulus that was approved then has become law. It does affect employers with one to 499 employees. A major provision in here is that it requires that employers on that range must provide emergency paid sick leave and emergency family medical leave that’s an expansion of the existing Family Medical Leave Act. The size of the employers based on the number of employees on each working day during the last 20 or more calendar work weeks in the current or preceding calendar year. The integrated employer test does apply and, the, what that means,
is that affects employers who own multiple locations, it’s gonna be the total number of your locations. Employers with less than 50 employees, there is an exemption written in the law, however, you have to prove a hardship and it has to be approved by the DOL to be exempted from this, and so that occurs, it does have to be followed.

John McFarland So the first is the emergency paid sick leave. This isn’t going to effect on April 1st through December 31st, for employees of employers with one to 499 employees. It provides a separate and distinct paid sick leave. And what I mean by that is, if you have an existing sick leave or a PTO plan, this is on top of that. It provides up to 80 hours for full-time employees, or for part-time employees who are also eligible. That number of hours for those employees is based on their average hours worked over a two-week period. If you don’t have an average over a two-week period, it’d be the average that they would be expected to work over that period of time, is really the best way to determine it. An employee is eligible for both if they’re unable to work and if they’re unable to telework. And that’s an important part, because if they can telework, then they wouldn’t qualify. Documentation can be requested and portions of that pay is credited against the employer’s 941 liabilities. For the clients online, that is gonna be paid under COVID PSL. If you are not a current client, you’ll definitely want to set up a specific pay type for accounting purposes in order to have that stand out. So again, it is a very distinct plan. It is above and beyond any existing plan.

Action of emergency PSL plan is not required, meaning, you do not have to actually set one up. Although, based on attorney recommendations, if you’re in the state of California, it is recommended that you at least track it and provide that documentation to your employees again, as a cert, be a separate plan set-up. But you do want to disclose to your employees the balance that they have and if the amount that they’ve used up to the point in time in which they exhaust it. Employees may not be forced to use the emergency paid sick leave first. Meaning, when an employee requests the time, if you have an existing sick and they have a balance or an existing PTO and they have a balance, let the employee choose which plan to utilize. Do not force them to use the emergency paid sick leave first.

John McFarland The next is the Emergency Family Medical Leave Act. That is effective April 1st through December 31st of 2020. For again, employees of employers with one to 499 employees. This provides job-protected paid leave for individuals that either have children that are out of school because of a closure, or, if the care provider is unavailable
or unable to provide care. You can request documentation and the paid portion, much like the emergency paid sick leave, is credited against the 941 liabilities. For the clients that are online, that pay code will be COVID FMLA. And again, for those non-clients, you’ll definitely want to set up a distinct pay type for this pay as well. So there should be two distinct pay types: one for the paid sick leave and one for the emergency family medical leave. Employees are eligible for the emergency family medical leave after a 10-day wait period. During that 10-day wait period, they can utilize the emergency paid sick leave. So theoretically, in total, they could get 12 weeks of paid leave. Employees that have been with an employer for at least 30 days are eligible for that.

John McFarland So who qualifies for emergency paid sick leave and emergency family medical leave? So, first is anyone who’s subject to a federal, state, or local quarantine, or isolation related to COVID-19. Those that fall under that criteria are eligible for paid sick leave at a hundred percent of their regular rate of pay or minimum wage, whichever’s higher. Up to $511 per day or $5,110 aggregate over a two-week period. An employer can choose to pay more, but those dollar amounts are the only amount that would be credited against the 941.

John McFarland The second criteria is an employee who has been advised by a healthcare provider to self-quarantine related to COVID-19. Employees in this situation are eligible for the emergency paid sick leave at a hundred percent of their regular rate of pay or minimum wage, whichever is higher, up to the same 511 per day or $5,110 aggregate.

John McFarland The third who may qualify as an employee who’s experiencing COVID-19 symptoms and is seeking medical diagnosis. An employee in this situation is eligible for the paid sick leave hundred percent of the regular rate of pay or minimum wage, or what’s ever higher, and then the same daily rate and same aggregate.

John McFarland The fourth criteria that one may qualify under is if the employee is caring for an individual subject to an order described in one, which is the federal, state, or local quarantine, or in two, which has been advised by a healthcare provider to self-quarantine. An employee in this situation is eligible for emergency paid sick leave at two- thirds of the regular rate of pay or minimum wage, whichever is greater. The daily is 200 and the aggregate for that is 2,000. And again, that’s the dollar amount that’s creditable against the 941.

John McFarland The fifth criteria is for an employee who’s caring for a child whose school or a place of care is closed or the child care provider is unavailable for reasons related to COVID-19. And in this particular situation, the way the law is written, it clearly states that it’s a son, or daughter, or child, so it precludes guardians, or grandparents, or aunts who are taking care of the children. It really is focused based on the way the law is written on the mother or the father of the child. Folks in those situation, they’re eligible for the Extended Family Medical Leave Act at two-thirds their regular rate of pay or minimum wage, whichever is higher. The daily is 200 maximum and the aggregate is a total of 12,000 because they count in the, the two-week waiting period where they can utilize the emergency paid sick leave and then additional 10 weeks on top of that. And, because it’s an expansion of the Family Medical Leave Act, this is not an additional 12 weeks on top of FMLA if an employee has already taken FMLA, it still follows the criteria of FMLA.

John McFarland And then the sixth and final reason an employee may qualify is if they’re experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with Secretaries of Labor and Treasury. In this particular case, they’re eligible for two-thirds of their regular rate of pay or minimum wage, what’s ever higher to the $200 max per day or $2,000 aggregate.

John McFarland In addition to this, so the DOL has put out a poster. The poster must be posted. Being that most employees are in a remote situation, you can direct mail or email those notices to employees. You can post it on a company intranet as long as all employees have access to it and you can send a notice for them to view. And for those of you on a skeleton crew or those that have not been requested to stay at home based on an order, you’ll want to post that in a conspicuous place. You have a single physical building place where all employees have access. If you have multiple buildings, you’ll need to place this in all the buildings if employees do not come to all the building. What I mean by that is if they only go to one building and not the others, you’ll have to have put it in the one building they go to, make sure everybody sees that.

John McFarland The employer is receiving an immediate tax credit against the 941 liability that’s further clarified by the IRS and IR-2020-57. And in there it specifically indicates that employer may retain federal income taxes withheld. The employee and employee portion of Social Security and Medicare to offset the cost of the emergency paid sick leave or the Emergency Family Medical Leave Act that was paid out. They do have notice indicating that if your payout is greater than your liability, let’s say, for instance, your payout was a thousand and your liability was 800, that you have the ability to file an immediate request for monies back for that $200 difference. And the IRS has indicated that they have a notice that they’ll get to that within two weeks. On the flip side, if you pay 500, and your liabilities are 800, you can retain the 500, but you’re still required to pay the 300 to the IRS, as you normally would. So, that’s just a couple of examples.

John McFarland So there has been some notices on tax deferments. The federal government has indicated that for both personal and business income tax filings and payments, they have been extended 90 days, so that’s through July 15th. You’ll definitely want to refer to your state specific for deadlines and payments. As of yet, I have not seen any notices of states extending.

John McFarland So one of the big questions we’re receiving is in relation to loans, to weather this storm. So at present, there are two loans available. There’s the traditional SBA loan, which is Form 7a. That’s just a regular SBA loan. And then there’s the Disaster Relief Loan Form 5. And this particular loan is available, and it was originally designed for physical damage for hurricanes, floods, and such, but there is an economic injury component, and that is what you’ll want to check when you fill out that application. And that is for situations like this. Those particular Disaster Relief Loans do have a 3.75% rate, 2.75% rate for nonprofits, that do have terms as long as 15 and 30 years cause they’re really designed to help businesses weather the storm, but that is substantial–a monthly payment. It does indicate that there has to be no other financial options. So that is one of the stipulations in that disaster loan.

John McFarland At present, the SBA is experiencing unprecedented volume coming into their website to file this form electronically. So what we have understood is that they would actually prefer that the forms be printed out and those forms be uploaded directly to their website. And that is right now one of the fastest ways to get those forms in. Local small business development centers, or SBDCs are a great resource to either help in this process or to take a look at the application before you submit it, as well as they’re a great free resource because they may have a knowledge of maybe local or state disaster relief and other things that can help businesses. And you can find your local SBDC by just Googling SBDC locator and then put your zip code and it will provide the two closest locations to that zip code.

John McFarland Recently, there were some changes in I-9 verification, understanding that there’s a lot of employees that are remote in many areas. Effective March 21, 2020, for a period of 60 days from this notice or three days after the termination of the national emergency, whichever comes first, this will be in place. Employers may view valid documents to complete Section 2 by utilizing video, email, fax, whatever means they have to view it. They must obtain, inspect, and retain copies of documents within the same three business days, so that does not change. And when normal operations resume, the employer must physically inspect the original documents that were provided remotely. And then they must write COVID-19 documents physically examined on and put in the full day under the additional information field. If during that time the original documentation present that has expired, the employer would be required to re-verify and complete Section 3, as indicated.

John McFarland These are some of the items that have been discussed in this third stimulus package. One of the items in there being discussed is forgivable loan to businesses for the payment of payroll and business lease mortgages. This will most likely still fall under the SBA Disaster Loan Form 5. It’s just that they’re gonna have a provision in there that
that portion may be forgivable. That loan is very, very specific to the ability to pay items to maintain business continuity. So you cannot use that loan, you know, to purchase a competitor, to purchase a new piece of equipment–it’s really designed to help you weather the storm. It can still be utilized for utilities and things to maintain business continuity. But as we understand it, just the payroll and the business lease or mortgage would be the only potential forgivable item in that.

John McFarland Those that have an SBA loan already may still qualify for the, a Disaster Loan. The Disaster Loans are capped at two million and there’s a five million aggregate for all SBA loans one they have. Also within this bill, there’s an estimated 300 billion for small businesses, a hundred and thirty billion to hospitals, hundred and fifty billion to state and local governments, and 500 billion to support large-sector businesses. And there’s some oversight within that particular piece, which is for the large-sector businesses.

John McFarland There is in that bill direct payments to most Americans where they’ve indicated twelve hundred dollars based on 2018 tax returns. That amount of twelve hundred declines for single tax filers who made $75,000 or greater, up to those that have made 99,000 or greater and above, or have indicated they would not receive those funds. Those married filing jointly would begin to decline that $1,200 for those that earned 150 or more, and for those that earn 198

or more would not be eligible. And then there was also an additional 500 per child. And then the final big piece in there is unemployment expansion to those who are furloughed, and gig workers, and freelancers, and also increases of $600 per week on top of the state’s specific maximums for four months.

Spencer Packer So, that was a lot of helpful information, but additionally, we wanted to cover some of the things that Vensure and our PEO partners are gonna be doing starting on April 1st, mostly for our current clients.

Spencer Packer First, we wanted to highlight that we’re more than just an HR provider for payroll, work comp, and benefits. We want to offer all of our current clients telemedicine starting April 1st, through our partner MDLive. This
is gonna be available for all of our clients, their employees, and the employees’ families. In a time when staying home
is extremely important, we want to make sure that the healthcare systems have as much bandwidth as possible. We believe we can make a significant impact on the healthcare system by offering this to our clients and giving them a resource to reach a board-certified doctor from the comfort of their own home, to ask any specific health-related questions, confidentially. If you are a client and you have questions about this program, please contact your Client Relations Specialist or point of contact and they can get you the information as soon as possible. You should also all be receiving a email communication on how to sign up with the MDLive program.

Spencer Packer I also wanted to touch on our next program, which relates to the SBA loans that we spoke about. We are going to be offering an outside CPA service to our clients to help them complete the loan application, as well as answer any questions around eligibility or timelines for receiving those loans. As you can imagine, there’s going to be a lot of demand to access these loans and we want to be there as a partner for our clients to help with that communication and navigate what is needed for the loan, how to complete it, which application is necessary. Again, if you have any questions around accessing that service, please reach out to your Relations Specialist, your point of contact, and they’ll be sure that you can direct resources.

Spencer Packer If I have to post this notice in other languages that my employees’ may simply speak, where can I get the notice that’s available in other languages?

Leo Villanueva And that’s a good question. You’re not at this time required to post this notice in multiple languages. In fact, they’re not even out. The Department of Labor is actually working to translate it into other languages. So you’re okay to post a notice in English, regardless of different languages that your employees speak.

Spencer Packer Someone had a question about the FML, the paid family leave. Did the DOL make a mistake on the employee rights poster listing a $12,000 cap, they, paid family leave?

Leo Villanueva That was something that some of us were confused about. The actual law limits paid family leave under the amendment FMLA to $200 per employee per day and $10,000 per employee in total. The DOL notice, the, as
you can see, it states that the total for paid family leave under the FMLA is $12,000. So it was certainly unclear, but it actually is not a typo. Got word from DOL that the poster was discussed in-depth and it is correct as posted and clear through the solicitor’s office. The DOL is going with a $12,000 number because that’s the total amount of paid leave available for an employee taking a child care-related leave under the act. So it is correct.

Spencer Packer Some specific bill questions here that we pulled together throughout the conversation. What is the actual effective date when the law is gonna be taking effect?

Leo Villanueva Well, the DOL now takes the position that the new law becomes effective on April 1st rather than April 2nd, as we’ve all heard. This is going to apply to leave taken between April 1st, 2020, and December 31st, 2020, when the bill is set to conclude.

Spencer Packer And then there were some questions around being under 50 employees. So how do smaller employers with under 50 employees request an exemption?

Leo Villanueva Okay, well, the Secretary of Labor is gonna have authority to issue regulations for good cause to exempt those small employers with fewer than 50. They’re gonna exempt them from the requirement of providing paid time off for child care disruption and expanded family medical leave if providing it would jeopardize the viability of the business as a going concern. And that’s quoted from the actual bill. Now, these employers are gonna have to document why the business qualifies for the exemption. Unfortunately, right now, nobody knows at this point how to request the exemption or what information must be provided. You also do not want to send anything to the DOL right now. It’s also unclear how long it will take for a determination on the request or whether the employer is required to pay the employee for the time during which the exemption request is pending. So, right now those are unanswered questions and the DOL is expected to provide additional guidance on how to elect this exemption in the forthcoming regulations.

Spencer Packer Another quick one here. Are the paid sick leave and expanded family and medical leave requirements retroactive.

Leo Villanueva Thankfully, not. In the initial bill that the House wrote, the provision was included. But, when the bill was revised by the House, before they sent it over to the Senate, it was removed. So if someone is on leave right now at your employment for a qualifying reason under the act, the provisions of paid leave are not gonna apply to any leave duration prior to April 1st.

Spencer Packer So how do I count hours worked by a part-time employee for purposes of paid sick leave or family medical leave?

Leo Villanueva Well, a part-time employee, they’re entitled to leave for his or her average number of hours in a two- week period. So, if you calculate the hours of leave based on the number of hours the employee is normally scheduled to work, that’s what you’re gonna get. So, if let’s say the normal hours scheduled are unknown or if the part-time

employees schedule varies, you may use a six-month average to calculate the average number of daily hours. So, such a part-time employee may take paid sick leave for this number of hours per day, up to a two-week period, and may take expanded family medical leave for the same number of hours per day, up to 10 weeks after that. If this calculation cannot be made because the employee has not been employed for at least six months, then go ahead and use the number of hours that you and your employee agreed that employee would work once, uh…And if you don’t have such an agreement, you can calculate the appropriate number of hours of leave based on the average hours per day that the employee was scheduled to work over the entire term of their employment.

Spencer Packer What is covered under the “catch-all” category for families first?

Leo Villanueva Okay, so, under the new law, the sixth reason that you’re gonna see for an employee that they can take leave for, is quote unquote, the employee’s experiencing a substantially similar condition to COVID-19, as has been identified by the Secretary of Health and Human Services. So, there’s not yet any guidance on what this means, as the Secretary of Health and Human Services has not yet identified any conditions similar to COVID-19, not even influenza. So for employers, you know, they’re not rea, required to grant an employee leave under this provision until substantially similar conditions have been identified by the Secretary. So that concrete answer has not yet come. We’re gonna be waiting for that.

Spencer Packer When calculating pay due to employees, must overtime hours be included in that calculation?

Leo Villanueva Yes. The Emergency Family Medical Leave Expansion Act is gonna require you to pay an employee for hours that the employee would have been normally scheduled to work, even if that’s more than 40 hours in a week. But, the Emergency Paid Sick Leave Act, they require that the paid sick leave be paid only up to 80 hours over a two-week period. So for example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and then 30 hours of paid sick leave in the second week. So in any case, the total number of hours paid under the emergency Paid Sick Leave Act is capped at 80.

Spencer Packer One employer is asking, can we ask an employee to stay home or leave work if they exhibit symptoms of COVID-19, Coronavirus, or the flu?

Leo Villanueva Yes, and that’s been a very popular question. You are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC actually states that employees who exhibit the symptoms of influenza-like illness at work during a pandemic should leave the workplace. So that’s sort of your defense there. And also the EEOC, the Equal Employment Opportunity Commission, they confirmed that advising workers to go home is permissible and not considered disability-related if the symptoms present are akin to the COVID-19, Coronavirus, or the flu. So, a lot of
us were worried about the ADA (Americans with Disabilities Act) and some protections there. And also, for example,
in California, the Fair Employment Housing Act and the protections there. But as the EEOC said, if it’s these kind of symptoms, you’re okay.

Spencer Packer An employee of ours did test positive for COVID-19. What do you recommend that we do?

Leo Villanueva Send home all the employees who work closely with that person for a 14-day period of time as they’re being, as they’re advising this, that way to ensure the infection doesn’t spread. So, before that employee departs, ask them to identify all the individuals who worked in close proximity, three to six feet, with them and the previous 14 days. And that is gonna allow you to ensure that you have a full list of those who should be sent home. And then when you send them home, obviously don’t identify by name the infected employee, Robin went over that, or you could risk a violation of confidentiality laws.

Spencer Packer One of our employees self-reported that they came into contact with someone who had a presumptive case of COVID-19. What should we do in that scenario?

Leo Villanueva Well, you need to take precautions. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potential infected employees. Communicate with your affected employees to let them know that the employee’s asymptomatic for the virus, but you are acting out of an abundance of caution.

Spencer Packer Another one, similar, similar topic. Can we require an employee to notify the company if they have been exposed, have symptoms, or if they’ve just tested positive for the COVID-19 Coronavirus.

Leo Villanueva Yes, you should record any employee who becomes ill at work with COVID-19 symptoms to notify their supervisor. Employees who are suffering from the symptoms should be directed to remain at home until they’re symptom-free for at least 24 hours, per the CDC.

Spencer Packer Can we deny an employee’s request for paid sick leave if we gave the employee paid sick leave for another reason identified in the Emergency Paid Sick Leave Act prior to that act going into effect?

Leo Villanueva No. So, the Emergency Paid Sick Leave Act imposes a new leave requirement on employers. So the bill is clear when it says that an employer cannot require an employee to use other paid leave provided by the employer before they use paid sick time provided by the act. So the initial 10 days, as we know, is unpaid, but an employee
has the choice, it says may elect, to substitute an approved vacation time and PTO particularly for unpaid leave. So employers that want to go ahead and just require them to use their PTO, you can’t do that.

Spencer Packer What actions can we take if an employee is exhibiting flu-like symptoms, but they refuse to leave the workplace or the office?

Leo Villanueva Remind the employee that you’re asking them to leave. You know, try to make them understand the reasons why their, depart, their departure is necessary, which is to maintain the health and safety of the entire workplace. If there are any benefits available, such as paid sick leave, use of accrued vacation, or something else that may appease them, then you should explain these benefits to them and how the employee can utilize them. If they refuse after that, then, you know, we get into more case-by-case basis details. And you should be talking to employment counsel or a human resource business professional to be able to get help with that.

Spencer Packer So here’s another question about the masks and respirators. Can employers refuse an employee’s request to wear a mask or a respirator during work?

Leo Villanueva Yeah, that’s been a very common question. Yes, but under most circumstances, you may want to consider allowing your workers to wear them if it makes them feel safe. In almost all work situations, however, there’s no currently recognized health or safety hazard, even when employees work near other people, and thus there is no need for a mask or respirator.

Leo Villanueva And then the World Health Organization actually stated that people only need to wear facemasks if they’re treating someone who is infected with COVID-19. And that wearing masks may create a false sense of security among the general public. So, and also along with that, people, when they put on masks, they’re touching themselves a lot more, trying to adjust to mask. So, it sort of doesn’t really help the cause.

Leo Villanueva And then, our, doctors have agreed, you know, as Robin stated, just wash your hands and do all the things that Robin was talking about. So, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator. And given the high degree of concern that we have right now at this time, you may consider permitting those workers who want to wear a mask to do so without necessarily encouraging them, if that makes them feel safer.

Leo Villanueva But on the flip side, can an employer refuse to come to work without a mask? OSHA addressed a common question of whether an employee can simply refuse to work in unsafe conditions, and you can look at further details into OSHA’s guidance a week or two ago, you can go to Google and do a search for ‘Guidance on preparing workplaces for COVID-19’, and that’s the actual title, you’ll, it’ll be the first one that you see on Google.

Spencer Packer During this crisis, can an employee be changed from exempt to nonexempt status?

Leo Villanueva Yes. So, nothing prohibits an employer from classifying a position as non-exempt. In such a conversion is not gonna affect the employee’s previous exempt status. It’s not gonna preclude them from returning to exempt catus, status in the future. And we have to remember that being non-exempt from the payment of overtime is actually considered to be more generous by the law than being exempt. But the opposite change is where employers get into trouble.

Leo Villanueva Also, if duties are gonna change, the employer is no longer eligible for the exemption. So, you want to review the employee’s job description, make sure the essential job duties are in line with the expectation of the work that will be performed. And if the job description needs to change to fit the non-exempt status, that’s okay. But, you wanna be cautious of the timing. This was previously spoken about, I think either Robin or John touched on it. So if you’re making the change in the middle of the week and the exempt employee worked some hours, that employee will need to be paid their full salary for that week.

Leo Villanueva If there’s not gonna be a change to the duties, you’re gonna want to make sure that they receive the equivalent wage and hourly mail, that it never falls below the federal state minimum wage, and the employee is gonna need to be made aware of their new standard hours. Any required breaks or meal periods, depending on the state,
if the state law requires them. And then the employer is gonna need to track the hours worked and pay overtime as appropriate. And then if duties change in the future, make sure to determine if the exemption requirements are met to classify as exempt. And you could also reduce salaries in response to COVID-19 if you have a legitimate business need, but each situation has to be looked at on a case-by-case basis.

Spencer Packer If you would like to send us more questions, please shoot em over to and we’ll get those sent back to you. As a reminder, some key takeaways will be included here in the slides. And another reminder to visit our website, for more information, where we’ll post this webinar, we’ll be posting the Q&A, as well as this slide deck here, so that anyone can share that with their resources.

Spencer Packer Please remember practice social distancing, avoid contact with any six people, sick people, and please be safe. We appreciate everyone’s time today and look out for our webinar next week that will be covering some more specifics on the SBA loans and how we can be helpful there. Hope everyone has a good week. And again, stay safe.

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