Hello and welcome to this morning's AED webinar on coronavirus issues. Our speaker today is Michael Airdoe, founding member of COPA and Airdoe LLC and AED's general counsel. Before I turn it over to Mr. Airdoe, I'd like to let those of you who are live with us know that you may submit questions during the webinar via the chat box in the lower left side of your screen. This webinar will also be recorded so that you may watch or re-watch on demand at your convenience. With that, I will go ahead and turn it over to Mr. Airdoe. Thank you, Liz, and good morning, everyone. It is certainly unusual circumstances that we gather this morning. Obviously, everybody's sound and systems are working well and that the sound is coming through. We are obviously providing you with this webinar this morning through suboptimal conditions. Liz was giving me instructions to participate in this webinar. She said I should use a landline and be close in proximity, and I said I don't have a landline and I have to be far away. We are trying to do what we can for all of you this morning to give you the latest advice. As Liz indicated, I am Michael Airdoe. I am the founding member of Copan Airdoe LLC and have been privileged to be AED's general counsel for many years now. That's my thanks to Brian McGuire and all the folks at AED for the opportunity to speak with you all this morning. I begin with this notion of what is COVID-19, just to set the stage. It is a pneumonia-like infection, and it spreads person to person. As everybody knows who's been watching the news, listening to the news, reading the news, and listening to all the reports from everyone, from your state agencies, from the Centers for Disease Control, the White House, there is new information coming out on an almost hourly basis about what this virus is. So it is what we do know is that it is spread by touching. It is spread by droplets of the virus entering into another person, and because of that, we have some unique circumstances. Because, too, this virus spreads before people have symptoms, it is hidden in the sense that you don't know that you are interacting with a person who is infected with COVID-19 because they may have no symptoms of COVID-19. When I was talking to a client yesterday about providing you all with this webinar this morning, he said to me, I don't understand what the ruckus is. I said, what do you mean? He said, well, I am behaving like a reasonable employer. I am keeping everybody quarantined for 14 days. And I said, well, sure, and because of that, people are concerned about productivity. And he said to me, productivity? Productivity has never been better. And I said, how could that possibly be? He said, well, nobody is allowed to leave the office. A little levity this morning for this discussion. We know it's serious. We know that COVID-19 is serious. The World Health Organization has officially labeled it a pandemic. And we haven't had a pandemic declared since 2009 with H1N1. Again, most people, when we were preparing for this discussion with all of you, we were not envisioning the world we are in today on March 19, 2020. We were envisioning a different world. Even three days ago, we were looking at things differently. So everybody should know that fever, cough, and difficulty breathing are certainly symptoms. And the direction here is for you to keep an eye out for your employees who display any of these symptoms. Our discussion this morning is going to be in a question and answer format, where I will ask you what we have determined to be frequently asked questions, and our best opportunity to give you advice. I have to also, as part of my advice to all of you, say that in this world we are in, given this virus and the changes day by day from both the health perspective and the perspective of the law, you really need to tread carefully and recognize that the information that I am giving you is information from a national or international perspective. And as we can see, there's a patchwork of laws. We know that in portions of California, there are certain orders. We know that in portions of New Jersey, there are people who are instructed to stay in place. So we know that in various locales and in light of the impact that the virus has had on the geography and the location, there are different requirements. So bear in mind that our advice to you this morning or our information to you this morning is from a national global perspective. And there may be local and state laws and state regulations and state rules that are going to apply to you and your operations. So I encourage you to, before you take any action, that you consult with your own legal counsel with regard to that action. We are going to provide you with the latest information we have from the bill the President signed last night dealing with FMLA leave restrictions and the application of that, the paid sick leave information. And we will speak a little bit about unemployment compensation in the act and how, again, that is very state specific, but the impact of that particular law as it was passed on your individual operations and dealerships. So again, the first question we have in terms of workplace safety is, can I tell an employee to stay home or leave work if they exhibit symptoms of COVID-19? And again, many places, this is a moot question because your operations are already dealing with a situation where you don't have employees present on the site and that they are all working remotely. But certainly, if you do have ongoing operations, you have a skeleton crew, you have people who are present, if you believe that an employee has exhibit symptoms of COVID-19, the symptoms that I described above, fever, cough, difficulty breathing, you can tell those employees that you believe to be infected to go home. The EEOC has advised, when we look at what it said in H1N1, that they do not consider the direction to go home of disability-related protection. If there are symptoms of COVID-19, given the fact that this is a pandemic and the implications of allowing an infected person to be on site to infect others with dramatic or drastic effects where there is no known cure other than time, so a person who is aged or has underlying infirmities may in fact, if they contract this, die from it, the EEOC is being reasonable in respecting an employer's decision to ask an employee to go home. What do you do if an employee tests positive for COVID-19? Certainly, if that infected employee, and you know about it, has it, you send that employee home and any employee who had close contact with them for 14 days. Now, close contact is a term that is being bandied about by experts. The notion is that if you were greater than six feet away from the person, there is chances are that there's low risk. But if in fact, you did have, you were in close quarters or contact with an individual with COVID, with a diagnosed case of COVID, that employee and those people who were around that employee ought to be sent home and they should be instructed to inform, to make contact with their healthcare providers to receive further instruction. What do you do if you suspect an employee has it, but it's unconfirmed? And that is to treat it as if it were confirmed and send that employee home and any others, again, who may have been in contact with that employee. What if you do, if that employee who either you suspect or you believe has been exposed to COVID has had contact with your clients? We are recommending, again, working with your lawyers to make contact with those individuals who have had contact, direct contact with the infected employee, recognizing that the confidentiality laws that exist in the United States of America and in Canada do apply. And so you need to be careful about disclosing who the individual was to a certain point. And again, work with your lawyers about how specific you need to be. But because of the risks that are in place and the potential damage that could be inflicted on a person who has had contact with a diagnosed case of COVID-19, all of those normal restrictions are being relaxed. Do you have an obligation if one of your employees has COVID-19 to report it to the CDC? The answer is no. If there is a reported case, meaning there's a test been done, and we've all heard about the lack of tests that are out there, but if a person has a confirmed case where it's been tested, it is up to the healthcare providers to follow the CDC guidelines and make those reports, not you. Should you have a written infectious disease preparedness and response plan? Certainly there is no federal law that requires or mandates you to have a disease preparedness or an infectious disease preparedness response plan. But if you are one of the operations where you are staying open, where you have to have Then we strongly recommend, certainly OSHA recommends it, and they have a proposed plan which is here on the PowerPoint where you can certainly look to see sample plans. Everybody's heard about the handwashing and the disinfecting and using alcohol-based sanitizers. All of those are recommended in place, and what this virus has taught us in terms of an infectious disease plan is if you, going forward, and it is difficult, I've seen a lot of advice here about people saying you ought to look at your insurance policies and you ought to look at your employment policies and practices and protocols. It's difficult right now in a crisis to think about those kind of long-term things and plans. But if somebody's making a list of what did I learn from corona, this should be on it, and that is do you have an infectious disease plan, and if you don't, when everything is back to normal, which depending on who you believe could be in the summer, maybe a year from now, it's something that should be on the list of things to consider. If an employee refuses to come to work because of fear of infection, do they have the lawful right to do that? I'm going to give you a lawyer answer and say it depends. The individual needs to be in imminent danger, meaning there has to be a threat of death or serious bodily harm and physical harm. The reality is what does that mean? For the most part, unless you are a healthcare provider or a first responder, there is generally not going to be an imminent threat of serious or physical harm unless there is knowledge that a person is in your place of employment who has a diagnosed case of COVID. Then certainly they could refuse to come in. Now if a person says I don't want to come in because I have a compromised immune system or I take care of my elderly parents and you say, well, if you don't show up to work, I'm going to fire you, you may be well within your legal rights to do that, but the public relations concerns certainly are going to be an issue. We have to measure our responses in all we do by what the law allows for, provides for, protects, and what the implications might be, not in the court of law, but in the court of public opinion. So also remember that the National Labor Relations Act protects concerted activity. So if there is a concerted refusal to work in unsafe conditions, it is specifically contemplated by the National Labor Relations Act to provide protections for workers, for employees. And so what we see on a fairly regular basis, or what I hear on a fairly regular basis as a lawyer is to say we are not governed, our place of employment is not governed by a collective bargaining agreement, we're not a union shop, we don't have any union folks. So the National Labor Relations Act and the NLRB guidance, the National Labor Relations Board Guidance doesn't apply to me, I say that is wrong. The National Labor Relations Act and the NLRB applies to everyone regardless of whether or not they are a union shop. So the laws that protect employees from coming together for protected work activity to complain about work conditions applies. And so there may be protections for certain employees in this instance. OSHA reporting, does COVID-19 constitute a reportable illness for purposes of OSHA? And the answer is yes, that's the short answer, if it is contracted while on the job. And while on the job is being defined very broadly, it's being defined broadly for purposes of unemployment insurance and for purposes of workers' compensation. So you need to be careful about whether or not you are going to determine this is employed, that a contract in case of COVID did happen on the job. If it's not contracted while working, if you know the person was in Wuhan, China, or in Italy and they contracted it there, well then there may not be a reporting requirement. Are your employees returning from a restricted country? You should check. The answer is yes. You should check the CDC guidelines. Again, we are certainly far removed from many of the travel restrictions that the White House put in place. The list of those travelers coming from certain places is listed. And if an employee has come back from one of those restricted travel locations, they are expected to be quarantined for 14 days. So on March 19th, we may be far removed from this decision to work remotely. And certainly there is a lot of advice and counsel to give on remote work. We certainly recommend on a regular basis that the remote work policies be in place, that you apply it even-handedly, that people who are hourly employees who are able to work at home, that there are certain restrictions in place. Please remember there are certain requirements. Certainly I will tell you that in the state of Illinois just recently, our governor signed legislation that provided protections for employees who were asked to work at home in terms of expenditures. So expenses for cell phones and internet and things along those lines where there are use requirements in order to perform the job duties that may be in place. So I encourage you to, if you are allowing your employees who are capable, meaning they have the opportunity to perform work from home, that all of the strictures that are in place in your location are being followed. So confidentiality, I hinted on this at the beginning. I will remind you again that COVID certainly doesn't trump confidentiality requirements. HIPAA restrictions remain in place. We've heard a lot from CMS, the Centers for Medicaid Services, and the Department of Health and Human Services about the lessening of restrictions on HIPAA requirements. And that is true, that for health care providers, for covered entities, HIPAA restrictions have been diminished. That's in order to provide care, so that we're allowing for continuity of care and dealing with the pandemic and the emergent response, that we're not going to be so motivated by the strictures of HIPAA, so that everybody doesn't have to get up, you know, if they're going for a drive-through test to see if they have COVID, that they don't have to sign paperwork and receive the HIPAA authorization forms before doing so. So those restrictions are in place, but the confidentiality requirements for an employee's health care records are not being lessened. They are not being diminished. So you need to make sure you pay particular attention to those. Health insurance. Are your employees still covered under group health coverage if they are not working? The answer is, in normal days, given normal circumstances, not necessarily. But I do encourage you to work with your health care brokers and your health plan providers to determine what their provisions are with respect to this. There has not been, from my perspective, a lot coming out from Washington with respect to this. We know that there's been instructions, which I'll talk about in a bit, that require health care plan providers, insurance companies, to, at no cost to the employee or the insured, to pay for any, to make any copayments or satisfy deductibles or self-insured retentions for any COVID necessary medical testing, medical provisions. Whether or not the health care providers are going to be, or the health care insurance companies are going to be expected to maintain coverage where the minimum working hours are not met by the policy is in flux. So you should work with your health care broker with respect to that. And this is the question of, what happens if employees are unable to pay their share of health premium? I believe there's been some information on this. So you should check with your health care providers. But normally, coverage would cease without timely payments. But we are not in, we are in anything but normal times. We are not in normal times. I should tell you that AED is committed to providing you with the latest information on this COVID outbreak as it applies. To you as employers, to its members. And so as you've been getting regular updates on the legislation and impact to your businesses, we are committed as general counsel to you, to your association to provide you with updates as we go forward. There have been, in fact, some updates with respect to the WARN Act, which I will talk about at the end. And since your chairman is a California resident, it is incumbent upon me to talk about California-specific legislation. And the WARN Act was something we were concerned about. But Governor Gavin Newsom has given some lessening of those restrictions, which I'll talk about at the end. We will provide you with an updated PowerPoint with that information. And as information becomes available or laws are passed that are of interest to you, we will also share that with you in brief updates. So, this health insurance testing program, is it covered by your group health plan? Again, it depends. But what we know is that the legislation that the president just signed last night does provide for it. So, wage and hour issues. Do we have to keep paying employees who are not working? The answer is generally no. But as you'll hear, there are FMLA and sick leave requirements that have been mandated by the federal legislation that will require it if there are qualifications met. So, we know that there's this distinction between white-toller and hourly employees. You know, we commonly refer to that as exempt and non-exempt employees. So, the FLSA, the Fair Labor Standards Act minimum wage and overtime requirements, only attach to hours worked in a work week. So, employees who are not working are typically not entitled to wages under the FLSA. And if, on the other hand, if a salaried employee performs at least some work during a work week, salary rules require that they be paid the entire salary for the work week. So, if they do any work during the week, they get paid for the week, except those employees who choose to stay home for the day and perform no work. Now, stay home is the general term, meaning that they did not show up for work at their normal place of employment, which is a critical piece, and they perform no work. So, if there are remote work requirements that are in place where you have determined that your employees are able to perform the essential functions of their job away from a normal place of work from their home, then they are expected to be paid. Now, they certainly have to perform work while they are away, and there certainly may be battles going forward about whether or not an employee did perform work. My instincts, folks, are that the law and the agencies that mandate the FLSA and your local state agencies will not look kindly on the failure to pay employees who are both exempt and non-exempt if they perform any work during this time. Other concerns, contractual obligations. So if you are governed by a collective bargaining agreement, you should turn to your collective bargaining agreement and determine what it says in these circumstances. If you have an employment contract with your employees, there may be contractual agreements that require you to pay people even if they are not working, if they are remotely working, or if they are not able to work remotely. And again, this comes up to the distinction between the court of law and the court of public opinion. If you refuse to pay an employee during the crisis, it certainly lead to media attention and cause reputational damage. Wage and hour issues. So does the Family Medical Leave Act apply? We are going to talk about this going forward. Interestingly enough, the FMLA was restricted to certain employers and many people, many employers around the country were not governed by FMLA because of the employee number. Well, given the law that was passed and signed by the President last night, those laws are being lessened. Those restrictions are being lessened. So it's going to apply. So the lessening of the FMLA or the application of FMLA and the FMLA provisions are applying to all employers of 500 employees or less. I'll spend a minute on the 500 employees or less. That is, generally speaking, if you are an employer of a person with one employee, they may apply. There are applications that will impact your operations if you are a 50 person employer or less. You may get some relief from the requirements, but generally it's applying to everybody who is an employer of 500 employees or less. If you are an employer of 500 employees or more, there are no protections, meaning there are going to be tax benefits and tax and reimbursements that the federal government will provide to employers that comply with the paid leave acts. If you have 500 or more employees, the government is saying you're on your own and you should be able to absorb the issues that will come with the operations and payment of your employees on your own. Now, there will certainly be financial assistance to those employers who have 500 or more employees, like the hospitality industry, the cruise industry, the airline industry, all of those situations. You should certainly work with your legal counsel on whether or not they apply, but what we know is that the instructions have been that COVID would not implicate the ADA because the conditions and the symptomology that comes from COVID are transitory. So, the Americans with Disabilities Act applies to those who have generally a disability that is not transitory, meaning it doesn't come and go. Now, they may come and go, but remember, it's a condition that affects a major life activity, and because the symptoms are to come and go and they're not permanent, there's generally no ADA provisions, but because it may substantially limit a major life activity in certain circumstances in certain individuals, it could be applied. So, it may apply on a case-by-case basis. Again, can you send employees home if they exhibit symptoms of contagious illnesses while at work? The answer is yes, and you should do that, and you will be in compliance with the law. So, let's talk about the law that was passed yesterday by the Senate, which is revisions to what the House passed over the weekend, and this says that the President was expected to sign the bill into law. We provided that to AED slides to AED last night in order to get them uploaded, and about 20 minutes after they were uploaded, we realized that the President had signed this into law. So, it has been signed. So, this is the Families First Coronavirus Response Act. So, again, the current threshold for FMLA coverage would change from only covering employers with 50 or more employees to now covering those employers with fewer than 500 employees. So, if you have never been governed by the FMLA before because you have 50 or fewer employees, you now need to pay attention. It also lowers the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid family and medical leave. So, again, there was a longer waiting period for a person who had to have been employed. Now it's 30 days. So, if the person was there for a month, they are now governed. They may be governed. Small businesses with fewer than 50 employees are exempt if the required leave would jeopardize the viability of their business. So, again, if you are one of those employers, then you need to work with your local counsel, your local lawyer, about how you go about applying for those waivers and those exemptions. So, what's the act say? Job-protected leave. Any individual employed by the employer for at least 30 days may take up to 12 weeks of job-protected leave to allow an employee who is unable to work or telework, meaning remote work, to care for the employee's child, and that is defined as a person under 18 years of age. If the child's school or place of care is closed or the child care provider is unavailable due to a public health emergency. So, what is important to look at here is there's a very limited emergency protection in the FMLA Act. That is, if an employee is unable to telework, telecommute, work from home, or show up to do work because they have to take care of a child, they have to stay home and take care of a child because the child's school is closed or the child care provider, the daycare center, the individual who is taking care of the person is unavailable because of corona, the coronavirus, then those individuals are entitled to 12 weeks of job-protected leave. Families First Coronavirus Response Act. The first 10 days under the House's provision, it was 14. The first 10 days of the emergency FMLA may be unpaid. However, during that 10-day period, the employee may elect to substitute any accrued paid leave, like vacation or sick leave, to cover some or all of that 10-day unpaid leave. So, the first 10 days, there is no requirement for payment, but they may be able to apply your PTO policy in order to get paid. After that 10-day period, and again, this is for the FMLA, after that 10-day period, the employer may generally must pay full-time employees at two-thirds of the employer's regular rate for the number of hours the employee would otherwise be normally scheduled. So, the Act now limits this pay entitlement to $200 a day and $10,000 in the aggregate per employee, meaning you don't have to pay more than $200 a day if the calculation works out where two-thirds of the employer's regular pay is greater than $200, and in the aggregate, meaning over the course of time, you don't have to pay more than $10,000 to that individual employee. Let's talk about paid sick leave. This is different than FMLA. This is paid sick leave, and there are six categories of employees who are going to be able to take paid sick leave regardless of an employer's sick leave policy. So, an employee can take paid sick leave if that employee is subject to federal, state, or local quarantine or isolation orders related to COVID. So, if there is an order by the government that says you must quarantine or isolate yourself, you are entitled to this sick leave policy. If an employee is advised by a healthcare provider to self-quarantine due to COVID-19 concerns, then they are entitled to sick leave. If they are experiencing symptoms and they are waiting or seeking a medical diagnosis, and this is a recognition of the time in which it's taking to get individuals to be tested since the lack of testing. So, if the person has symptoms and they're waiting to be tested, they are entitled to this sick leave. If they are caring for an individual subject to this quarantine or isolation order or advised by a healthcare provider to self-quarantine, then they are entitled to paid sick leave. And under the House's version of the Act, an individual was defined specifically to be a family member. Now, it doesn't necessarily have to mean a family member. Caring for an employee's child, if the child's school or place of care is closed or the child's care provider is unavailable due to a public health emergency, the individual employee is also entitled to take paid sick leave. And then the catch-all provision that experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and Secretary of Labor. So, these definitions may expand in terms of who those qualified individuals are. So, eligibility. This provision requires employers with fewer than 500 employees to provide full-time employees regardless of the employee's duration of employment prior to leave with 80 hours of paid sick leave at the employee's regular rate of pay. So, what's important to recognize is this is not the 30-day requirement. The 30-day requirement applies for that SMLA leave and that emergency SMLA leave was designed for a person to have job protection for 12 weeks if they had to stay home to care for a minor child. This eligibility for paid sick leave does not have a duration requirement. So, the person may have been your employee for one day prior to going on paid sick leave. And it provides full-time employees with 80 hours of paid sick leave at the employee's regular rate or two-thirds of the regular rate if they are home to care for another person. So, those qualifying reasons four, five, or six on the list above. So, if it's not because they are home because they are quarantined, they've been advised by a medical professional to stay home, or because they're waiting for a medical diagnosis. If it's one of those other reasons, meaning they're caring for an individual, they're taking care of a kid, or one of the other reasons that the federal government through the cabinet offices that were outlined provide for it, they then get two-thirds of their regular rate of pay. So, if they're home because they have COVID, they get a full amount of pay. If they're home for those other reasons, they get two-thirds of their pay. An important change to this section provides an exception for employers who are healthcare providers or emergency responders. So, what the Congress recognized and the Senate recognized was we can't apply this to hospitals or fire departments or emergency responder agencies because we need those folks. So, there are exemptions and exceptions for those employers. I did see a note in the news this morning as I was preparing for this that Speaker Pelosi is attempting to make provisions for healthcare workers specifically in order to ensure that they remain healthy and that they are going to be capable physically, mentally to care for COVID patients. So, I say to keep your eye out for those situations. There is a cap on these wages that comes from the Senate Act, which is specifically paid sick leave wages are limited to $511 a day for sick leave wages or $5,110 total per employee for their own use, again, if they are COVID patients, and up to $200 a day or $2,000 a day if they are taking care of others. So, there is a cap up to that amount of money. Carryover and interaction with other paid leave. So, it's important to recognize that this paid sick leave will not carry over. So, the person can't say in 2021 that they are using up their corona sick leave time or they want to apply that as paid. They are not allowed to do that. But it may be in addition to any paid sick leave currently provided. So, you are entitled to require your employees to use up their paid sick leave before you require them to apply to the government's sick leave policy. Calculating rate of pay. Employers are to look at employees who work part-time or a regular schedule are entitled to be paid based on the average number of hours that employee worked for six months prior. So, if you have a record of what they worked six months before, you pay them what that average was. If you have employees who work less than six months for you, then they are entitled to an average number of hours they would have worked during that two-week period of time. So, what they were expected to work. If they were a nine-to-five job, then you have to pay them on that nine-to-five hourly rate. A business employing fewer than 500 employees is required at the request of the employee to pay full-time employees for 80 hours of mandated emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by the Act. So, again, the employee can say, use up my paid sick leave, my PTO, my paid time off levies before you apply the 10-day unpaid emergency leave. So, this is going to be in effect on April 2nd because it takes effect 15 days from the date of the President's signature. So, we know he signed it yesterday. So, April 2, this law will come into effect and it will be in effect until New Year's Eve, December 31st. I apologize. I'm muting myself because I have a little cough. Everybody should recognize I am in isolation in my home office and nobody is getting infected by anything coming out of my mouth. The new requirements. So, now that this bill is being enacted or has been enacted, you will have to adhere to these requirements and you will have to post and create policies regarding these. These posting requirements are something that we will certainly provide to you once we have them. Once we know what they are, we will share them through AED. So, there are going to be requirements of posting. Now, for the good news, how is this all going to be paid for? The good news, so to speak. Employers are entitled to refundable tax credits equal to 100% of the qualified sick leave wages paid by employers for each calendar quarter in adherence with this act. Now, I'm going to pause here to say that you ought to work with your payroll company and with your accountants, your auditors, and your lawyers to ensure that when you are making payments pursuant to what you believe the law is, that you are making those payments in strict compliance with the act so that you are going to be reimbursed 100%. If you make payments to people who do not qualify or you make payments to people because you are being charitable or benevolent employers, you cannot rely upon getting paid, reimbursed, or taking those tax credits in those instances. So, you need to be very mindful that you comply specifically with the requirements, with the definitions, with the amounts, with that 80-hour rule, with the caps, the $511 and $200 requirements if you want to be reimbursed 100%. Remember, the qualified sick leave wages are capped at $511 a day or $200 a day if the leave is for caring for a family member, and it is up to 10 days per employee in each calendar quarter. So, it's only for 10 days. After that, these requirements do not apply. Similarly, you are entitled to 100% for qualified family leave wages paid in each calendar quarter for the Emergency Family Medical Leave Act, but remember, that is required for those employees who are mandated to stay home to take care of a minor child, and it's only employers who are required to offer, may receive those credits. So, if you are not a qualifying employer, then you do not, then you cannot be entitled to receiving those credits, and these wages are capped at $200 a day, and this is $10,000 per calendar quarter. So, this is the person who's staying home for 12 weeks to take care of a child because of the child care needs. Now, remember, this is constantly evolving, so pay close attention to announcements made by federal, state, and local officials. Pay attention to your communications from AED because, as I said at the outset, many states like New York, California are making specific requirements at their own legislation regarding paid leave. It is incumbent upon me to tell you that the discrimination laws are alive and well in the United States of America, and so you should recognize that all those typical plaintiff's lawyers who are out there looking to file charges of employment discrimination based on Title VII and the individual state acts that prevent discrimination are going to be in full force when we come out of hibernation and isolation and hunkering down, and so I tell you that you need to be mindful of those of your employees who are of Asian descent, that you do not treat them any differently. I think the advice is coming out to any, really, any foreign national, those people who are of Italian descent or German descent or have Italian relatives, German relatives, any Asian relatives, to be mindful of the discrimination laws that are in place. A question about making changes to unionized employees schedules. I encourage you to exercise caution, and any unilateral changes, if you have an existing labor agreement, could lead to unfair labor practice charges, even with the pandemic, so look to your collected bargaining agreement to see if it allows for flexibility, and certainly consult with your labor lawyer about that. The law requires adequate notice if you're going to make any changes, so there is a need for, if there's a need for prompt changes, a short notice period might be appropriate, but again, it depends on your circumstances, so hopefully all of you who are governed by a collective bargaining agreement, by a labor negotiation, are working with your labor lawyers. A point on force majeure, this certainly is in the context of a union contract. Force majeure is French for meaning super force. This is of interest to many people from a non-employment context. If you have contracts with suppliers, if you have contracts with places for conferences, for hotels, things like that, there is generally a force majeure clause in your contract, and they're put in place for these types of reasons, which are depicted in this graphic, which is for tornadoes or tsunamis, windstorms, things like that. Certainly, pandemics are contemplated. Global pandemics certainly appear to be governed, but many force majeure provisions in the contracts do not have specifically mentioning of pandemics or viruses. So it's gonna depend on whether or not the force majeure clause will apply, and you need to work with your lawyers with respect to that and being able to rely on that. As I indicated a bit ago, there's the WARN Act, which applies in California. If you're gonna suspend operations, if you're governed by the WARN Act, meaning if you're an employer with 100 or more employees, you have certain notice requirements if you decide you're gonna go into a layoff. These notice requirements have been relaxed by Governor Gavin Newsom pursuant to an executive order, and so I encourage you if you're going to have to take acts to implement that may implicate the WARN Act, that you work with your California counsel on that issue. Workers' compensation. Is an employee entitled to workers' comp if they contract COVID-19 while on the job? The answer is yes. If they are a healthcare worker or a first responder, we know that. It's less clear for other categories, and so, and with other employees. But if there is evidence that your place of employment had a person with COVID-19, and those employees contracted COVID-19 later, there may be certainly an argument that workers' comp will apply. So you need to look at your own workers' comp laws in your state and look at what the state agencies are saying with respect to that. If it is contracted in the course of employment, it's considered a occupational disease. And so again, is it caused by conditions peculiar to the work that creates a risk of contracting the virus greater than the risk to the general public? And the general test will be whether the employee was involved in some activity where they were benefiting the employer and were exposed to the virus. If there's a connection to air travel or being in a foreign land or being in a place where you were making a delivery with a person, things along those lines. Your techs repairing equipment, and there's evidence that a person had it on the job site, I think there's gonna be certainly an argument to be made for workers' compensation applying. And I will tell you that I believe we are going to see liberal application of these workers' compensation rights across the country. If they got it for while traveling, it's gonna be very state-specific to determine whether or not travel was governed. So I'm going to attempt, Liz, to navigate this chat pane in a minute to answer some questions. I know there were a lot that were coming. But I wanted to say that there are, as you all know, this is evolving minute by minute. So check for the federal guidance, the CDC and OSHA. I have the websites where those guidance is being provided. And again, you know, knock on wood, and God willing, AED will remain healthy enough, and all of us who are partners with AED to share with you the information necessary in order to help you operate your business. Okay, so now, let me see if there are some questions. Liz? Yeah, I actually was writing them all down as they were coming through. Do you want me to go through them one by one? Yeah, because the box on the bottom there blocks my view. So that would be good. If you could do that, that would be great. Oh, absolutely. So we'll start with, yeah, no problem. Some of them might have been answered in the course of your presentation. But we'll just start at the top. How does H1N1 numbers compare to COVID-19? Did we under-hype H1N1 or over-hype this? Yeah, I mean, the numbers are coming out. All indications are that COVID-19 will eclipse H1N1 by leaps and bounds. And let me give you a caveat. I am a much better lawyer than I am an epidemiologist or a doctor or a person who has studied the statistics and auditing information about epidemiological studies in terms of pandemics. So I give you caution with my answers. And again, all of this information is coming out minute by minute and evolving. But the indications are that what we can turn to really for a comparison is the 1918 flu. And again, all indications are that this virus is different from those. And one of the hallmark differences is the notion that people can be symptomatic, people can be contagious without being symptomatic, which is really a critical piece of information because you may not know. And this is why the advice is changing now in terms of millennials and those people who are younger. This notion was that people were dying from COVID-19 but people who were dying were people who were infirmed with an underlying pre-existing condition or aging. But now, and that's just because people who have it were asymptomatic. And so that seems to be one of the critical differences between many of the other like Ebola and H1N1 where the actual symptomology doesn't manifest itself until later while the person can still be contagious and the person can still be contagious and carry it as a 20 year old, a 30 year old. In Illinois, I saw that the cases yesterday range in age from nine to 99. So there are, it appears to have no boundaries in terms of that. And so H1N1 is illustrative, but we think that this is gonna eclipse H1N1 significantly. All right, thank you. For someone who had contact with an infected or possibly infected person that are sent home, is that sick time, workman's comp or other? That's gonna be an interesting question. I would say that it's gonna depend on your geography, where you are in the country. And I would suggest that you work through those issues specifically with your lawyers and with your accountants because the way in which you classify those payments may entitle you to reimbursement. And the way you classify them may entitle you to no reimbursement. So it's a situation where you need to work hand in hand with your financial professionals so that they can help you with the classification such that if you are an employer that will qualify for the tax reimbursement benefits to take advantage of those. All right, the next question. If an employee does not work for a day or multiple days, should PTO be used against those days, both hourly and salaried employees? So that answer is easier for me to give you when you're talking about hourly employees. Certainly if the employee is hourly and you are going to pay them, you can apply PTO time to their time off. And there's an implication there that the employee is not able to perform the functions of the job remotely to telework. So certainly you can apply the PTO requirements. Now there's a lot of advice from a benevolence perspective to not apply PTO. But again, work with your accounting professional to determine whether or not that makes sense and whether or not there may be other applications you can employ that will allow you to be reimbursed in the event you do make payment to that employee and whether or not it makes sense from a tax perspective to charge that employee with PTO time. The salaried employee who doesn't work, you need to ensure that that employee did not work. So if the salaried employee does any work during that work week, they're entitled to being paid under the SLSA for their entire work week. Now if you know that that employee did not perform work during a particular day, they said, listen, I'm not telecommuting today, I'm not gonna respond to emails, I'm not gonna take telephone calls, I'm gonna escape from the grid, then there's no obligation to make those payments. And you can certainly charge a PTO date to those individuals. All of my commentary are obviously general. This is not specific legal advice. And I need to say that in these times because there may be state requirements and those of you who are in those states and in those jurisdictions where those requirements apply, know who you are. Okay, next one. FMLA never applied to us. And our three branches are far apart and each have less than 50 employees. With the new description, will we now fall under the original FMLA unpaid leave as well? Yes. Wow. Yes. The short answer to that is yes, it will. And it will allow, it will apply and it gives that extra protection to those who are home taking care of a child. So the answer is yes. Again, look to what requirements apply and remember that there may be state requirements that are more liberal in the sense of the benefits that they provide to employees even greater than what the federal law requires. So pay particular attention to that and look at what those implications are for your employment, for your place of employment. How does the two week paid leave clause passed last night impact your comment that if an employee doesn't come to work, we don't have to pay them? If an employee doesn't come to work, you have to look at why they didn't come to work. So remember, there are six specific categories of people who get paid if they don't come to work under this paid leave act. They have to be impacted by COVID-19. So just because this is not a holiday, there has to be evidence, which is why I caution all of you if you're gonna make payment under this act and expect to be reimbursed, you need to work with your accounting professionals and your HR professionals to ensure that you have the appropriate documentation that you're making payment pursuant to one of the six provisions in the act. If a person is just not coming to work because they don't wanna come to work or they're telecommuting, that doesn't apply. So these people have to be either quarantined because the government tells you they're quarantined, a healthcare professional has quarantined or placed them in isolation, or they're waiting to be tested because of COVID-19. That's the first three categories. The last three categories are they're caring for an individual who has COVID-19, they're caring for a child who doesn't have COVID-19 but is home because their school is closed or their childcare provider isn't able to care for them, or there's some other reason that the Secretary of Health and Human Services, the Department of Treasury and the Department of Labor has classified them as. Those are the six categories that entitle employees to be paid where you can be governed. If an employee is simply not working because there's no work to do and there's no remote work opportunities, then there's no obligation to pay them. They're not gonna qualify for sick leave because they're not sick. And they're not gonna qualify for family medical leave because they're not under the Family Medical Leave Act because there's no family or medical issues that are requiring them to take leave. Okay. Does shelter in place constitute isolation or a quarantine order? That's a good question. What we're looking at and there's questions about whether or not that order, I can tell you that just locally, right here in our very state of Illinois, one of our cities, the city of Oak Park, not the city of Chicago, a smaller city, has indicated a shelter in place order. So the question will be, those persons can, and the only exceptions to going out are for particular reasons. Work is not one of them. So in many instances, it is for groceries, to get prescriptions, and very limited basis to actually go out. And so it's going to be interesting to determine whether or not that order is going to be sufficient to govern this requirement. So the answer's gonna be stay tuned. We don't have a specific answer for that. But I would say that given the tenor of the discussions in Washington, D.C., and I certainly leave that to your president and your Vice President Daniel Fisher to discuss with you those issues, I think about the tenor of Washington, D.C., there is going to be liberality applied to these principles in terms of what will qualify an employee for protection. And part of that has to do with the notion that we want to keep the economy running. And so if people have payment, if they have money coming into their bank accounts, the chances are they will keep the economy running. And so there's a focus on keeping that unemployment rate down, which we haven't talked about unemployment, but the lines are outlandish and the responsiveness by unemployment agencies throughout the country are being very, as I understand it, very difficult to navigate. Okay, next. What documentation will be necessary to apply for the 100% tax credit for qualified paid sick leave? We don't have that documentation yet. So the government, too, has 15 days. Remember, this act applies April 2, so everybody will be working overtime to try to figure out what that documentation is, which is, so I think you have to stay tuned to that. And my recommendation is your payroll companies and your accountants will be able to assist you with that documentation. Okay, if we have one week of normal sick time and the person has used it already, do they still get the two weeks or just one week? They still get the two weeks. So repeat that question for me. Sure, if we have one week of normal sick time and the person has used it already, do they get the two weeks or just one week? I think they mean like, do they only get one additional week? No, they will get an additional time. So the key to time off, the paid time off, is that you may not have to, if the individual is home for the emergency FMLA leave, they are entitled to no pay for the first 10 days and they could ask that PTO time be applied to that so they get a paycheck. If they are sick, meaning they come within the purview of one of those six categories, then they get the additional time in addition to what they've already been paid through your regular PTO policies. Okay, regarding paid sick time, is it 80 hours per quarter or 80 hours until December 31st? As I understand it, it is 80 hours per quarter up to those limits. Those dollar limits. Okay, how would the sick leave rule apply to commission employees? That is going to be, so what the expectation are there is that you look at what those employees, and that's where they're trying to come up with this system of hourly rates. So it's just, it's what their rate would be for an hourly wage or a salaried wage, not based on commissions and bonuses are not factored in as I understand it. Now there may be some devils in the details of that law that just have not come out, and if there is, we will certainly provide that information to you. Okay, how do you take the tax credit? Is it against employer payroll taxes? Yes, that's my understanding. It will be against employer payroll taxes, and if your payroll taxes, if the amount of money paid out is in excess of what you would normally pay in payroll taxes, you will in fact be reimbursed by the government. So it's not, you're not capped at what your payroll taxes are. It will give you, the government will give you a check. Okay, if we have an across-the-board wage and salary reduction, say 10 to 20%, does the sick leave rule apply at the old wage level or the new wage level? I don't work, I don't know the answer to that. I would say that you should work with your, you should work with your accounting folks and your lawyers on that. My, my, my, my instincts will say, and my best judgment on that would be that it's going to apply to the old numbers because what we're looking at is what, when we look at what the guidance is from the legislation, it is all about what the past shows. So they're looking at six months past. So the idea of lowering the rate of pay and using that is likely not going to fly. I can take a couple more. We have, sure, a couple more. We have an employee out sick with the flu, but not COVID-19. Does this apply to emergency paid sick, sorry, the Emergency Paid Sick Leave Act? The employee has a doctor's note for four days off. No, this only applies to COVID-19. Does not apply to other, the other illnesses. Okay, a couple more here. Is caring for a child limited to your own custodial children? The way in which the, well, I don't know what custodial children means, but I know what it means. I don't know if there's a, I don't know if the legislation specifically says you have to be the custodial parent. My sense is that, again, when we're all looking at this, at this legislation, we should look at it with the notion that the courts and the agencies will interpret it broadly. So I think child is going to mean biological child, stepchild, adopted child, whatever the case may be. So I think it's gonna be broadly interpreted. So if you're gonna deny a person any rights because they're taking care of a child that's not their child, I would tread carefully. Okay, can we do one more? Absolutely. Do we have time for one more? All right. If this becomes effective April 2nd, do the paid leaves cover time taken before that? Yes, as I understand it, it will likely be retroactive. So we have until April 2nd to get our house in order, meaning we have that time to get policies in place, to publish the notifications, but I believe it will be retroactive to apply for people who would qualify under the act. All right. Well, I know there might still be some questions coming in. Is there a way that attendees could maybe submit them to you guys? Or what do you recommend for people that are still maybe unclear on kind of this bill and how to apply it? Sure thing. So on the screen is my contact information. Email is probably the best way in which to send those questions. So emerito at copanerito.com. Feel free to communicate with me that way. There is also a, our program is the call council program, which is my telephone number, 312-506-4480. And call council is a service that is available to all AEB members. And we're happy to take calls that are general in nature. Now recognize that those calls will come into me and they may be channeled to one of my associates, lawyers who understand this topic as well or perhaps better than I do. Mr. Airdre, I'm sorry, one more question. If we want paid sick time and we have more than 500 employees, can we get the tax credit? As I understand it, no. So if you have more than 500 employees, this particular law is not going to apply to you. Now what, the other side of that is that there will be special legislation that will be designed to help employers of 500 or more. And however, you know, the government sees fit. So again, we talked about the cruise industry, the hospitality industry, the, you know, airline, airlines, things like that. So there will be special rules, special credits, I believe that will come to those people who are 500 employers or more. Those employers who employ 500 employees or more. All right, well, Mr. Airdre, thank you again for your time this morning. Thank you. Thank you all. Good luck. And thank you everyone for joining us. Wash your hands.

coronavirus issues

employment impact

new legislation

COVID-19

pneumonia-like infection

person to person transmission

symptoms

workplace safety

Families First Coronavirus Response Act

FMLA leave

paid sick leave