In the wake of the ADA’s statement requesting dental offices nationwide close their doors for 3 weeks, what must dental offices do to navigate these uncertain waters?

In this episode, Dr. Allison House and Shawn interview Labor Law expert attorney Denise Blommel. Listen as she outlines what Dentists can do today to get through this current crisis.

Full Transcript Below

Shawn (00:00):

Hey guys, this is Shawn and Allison, and just with all the craziness that’s going on right now we thought we’d come together and record this segment that we think is just so important and we’re really hoping that it just provides some guidance and encouragement just during this kind of uncertain times.

Allison (00:21):

So we are in difficult times. Today is March 17th…It is actually Saint Patrick’s day 2020 and yesterday the ADA asked dentists across the country to set down their offices except for emergencies for three weeks. And I can tell you I’m scared. I’m really scared. I, I’ve never even taken a two week vacation. This, this is a big deal.

Shawn (00:46):

And, and you’re not alone. Like what we hear is that a lot of people are scared and not, not just dentists, but or hearing from dental professionals is there’s just uncertainty. Like we’ve, we’ve never been at this crossroad before.

Allison (00:58):

We have never been here before. And as I said that I’ve never taken a two week vacation. It seems like time is something that I never have and all of a sudden it’s been given to me. And so I really need to reframe this and, and look at it as a gift of time. So I think we’re going to talk about that in another podcast about the mindset and how are we going to utilize our, our three weeks so that we grow and we’re better when we come back.

Shawn (01:26):

Absolutely. So we’re excited. That’ll be our next episode, but in this episode we have something special for you.

Allison (01:34):

So my dear friend, Denise Blommel is a labor attorney here in Phoenix and I think that there are a lot of questions about labor law and what we can do with employment. And so she has been so gracious to give us our time today and answer some questions. Welcome to Denise.

Denise (01:53):

Well, thank you so much, Shawn and Allison, it’s great to be with you today on your podcast.

Allison (02:00):

So it’s nice. We’re just going to jump right in. Except would you tell the audience just a little bit about yourself?

Denise (02:07):

Sure. I’m a labor and employment attorney. I limit my practice to that. My office is at Shea and Scottsdale roads and I represent both employers and employees. I have the great honor of representing several of your members of the American dental association. And I’ve done a lot of work with smaller businesses dealing with all kinds of employment issues. Allison and I know each other from serving together on the girl scout board and I am marking my 20th year of being on the girl scout board.

Allison (02:48):

That is wonderful. We had a really good time on that board. So Denise, I think there’s a possibility that dentists are not going to be able to pay their team the full salary for three weeks. And so there’s a lot of questions about how are they going to address that. And so I guess the first thing people are asking is what are we liable for if we totally close our offices?

Denise (03:15):

Well, I think the first thing we need to look at is whether or not relief is coming from other sources. I mean, obviously employees who have earned paid sick time can use it if they themselves are ill or if their children have been excluded from school due to the quarantine. If the employees have other types of paid time off such as vacation or PTO they can use that. But we also need to keep our eyes on this bill that has passed the U S house of representatives. It is going to the Senate and that would provide emergency paid sick time up to 80 hours of emergency time due to the Corona virus novel coronavirus COVID-19 chain. So that’s one thing, but I think the other thing we need to look at is how are we paying people anyway?

Denise (04:25):

So if we have, for example, a salaried exempt employee and, or like a dental hygienist, and we say, Oh, well, you cannot work for three weeks. Well, it’s kind of like a the, the snow day in the Midwest where the employee is sent home through no fault of her own, and she is an exempt employee under the fair labor standards act. So she has to be paid of for that day. Now she’s gone for three whole weeks and performs no work whatsoever. Then the fair labor standards act says that you do not need to pay the salaried exempt. However, if she answers email while at home or those, your scheduling or otherwise helps out, you know, with work anytime that she works during that week you need to not only pay for that work, but for the whole week unless you have a policy which complies with the fair labor standards act, where you can deduct pay in the event that this person, the salaried exempt has exhausted her earn paid sick time and PTO.

Denise (05:45):

Now for salary non-exempt, things get dicier. And this is where I think a lot of dental offices and other small businesses don’t understand. They say, Oh, well I’ve got an admin, I’m going to put her on a salary. Well, this person is a non-exempt employee under fair labor standards. She should be paid by the hour, but you know, we’ll pay her salary. Well, the problem is is that you can’t dock her pay. And that is a big concern. So I think that even before we start figuring out, you know, how are we going to pay people for the three weeks that we’re going to be off? How have we been paying people in the past and are we doing it correctly?

Allison (06:30):

Okay. So obviously we’re not going to be able to fix that today if we’ve been paying them incorrectly. Right,

Denise (06:38):

Right, right.

Allison (06:40):

So let’s start with, if I had an hourly employee let’s say I had, my hygienist is an hourly employee, what is, and she doesn’t work for the entire three weeks. Do I owe her pay?

Denise (06:56):

No, no, not as we’re sitting here right now. Unless she has earned paid sick time, she could use or other paid time off, she could use. But again, today’s March 17, we don’t know what the Senate is going to do with that bill coming out of the house of representatives in Congress because that bill provides that employers have less than 500, which I dare say is probably all of our dentists listening out there. We have less than 500 employees, right? Yeah. So Oh, employers of less than 500 are all going to have to give this emergency paid sick time. And there also will be a, if you will, a national earned paid sick time. But again, this is not in effect right now. And I know the next question is going to be, Oh well who’s going to pay for that? And let’s not be naive here. Yeah, the employer’s going to have to pay for that. And I, I’ve seen all kinds of stuff about tax credits. There is a tax credit provision in there and tax credits are delightful, but tax credits are next April. So day.

Allison (08:27):

There’s no immediate, nothing in the works to kind of have some provision for the employer right now. Can we circle back? We keep saying simply,

Denise (08:40):

Yeah. Not to fund this. This is what I think can generously be called an unfunded mandate.

Allison (08:48):

Okay. So you had said that this was, I’m sick time, our employees aren’t sick. Does this [inaudible]

Denise (08:56):

No, the employee is not sick. However, the kids are home from school because the school has been closed due to corn pain. And that makes the difference. And that is eligible for earned paid sick time. The employee is eligible for and paid sick time under Arizona law. That’s our proposition. Two Oh six that was passed back in 2016 became law on July 1st, 2017 the fair wages and family healthy families act. There we go.

Allison (09:29):

Okay. So we’ll have the employee take three days. It’s three days in Arizona, isn’t it? Of unpaid paid sick time.

Denise (09:39):

It’s 24 hours for employers of 14 or less. 40 hours for employers of 15 or more.

Allison (09:49):

Okay. Some of us have offices where people accrue paid time off. What if they haven’t accrued any more paid time off? They don’t have three weeks of paid time off.

Denise (10:01):

Well that’s, that’s a problem. And the the thing is, is that they don’t have it accrued yet. They can’t use it. And this is where this federal legislation, all eyes need to be on Washington DC right now because this federal legislation may go ahead and preempt our state legislation with respect to that and say they can use this right away. As a matter of fact, I believe some of the language says they can use it right away. They don’t have to accrue it.

Allison (10:35):

So some of our our young dentists have half a million dollars of student debt and then they owe $1 million on their practice. And so they just don’t know where they’re going to get the money to pay an employee. Is it possible that they could lay people off?

Denise (10:54):

Yes. however they might like to consider something called shared work.

Allison (11:03):

Ooh, what is that?

Denise (11:04):

Okay. This is something that the department of economic security here in Arizona has, and this is where the employee’s normal weekly hours are reduced by at least 10% but no more than 40% the employee would file the claim with for unemployment compensation, but continue working for the dentist part time and get part time, part of the time, get unemployment and part of the time work. Now the interesting thing here is that this federal legislation proposed federal legislation should say, provides for monies to go from the federal government to the States for boosting unemployment compensation. So the shared work concept on might be really good. Now I’d be ETF has an interesting portion on their website, which talks about advantages and disadvantages to shared work. But probably the biggest advantage to share at work is that you get to keep your employee who you’ve already trained.

Denise (12:22):

You know, and they’re, they’re part time. But that the thing is, is they get to make up the rest with unemployment. So I, I really think that makes sense. Now the, the thing is, is that lay off might happen. Another term that I think we’re going to get used to here soon is called furlough. And a furlough happens when the employee is let go on a certain date, but will return on a date certain in the future. And we’re familiar, I think with furloughs at the federal government, you know, we’re, we, we go through that brick and chip every year of, Oh, the government’s going to shut down, you know, that type of thing. And the employees have to, federal employees have to go on furlough until their agencies are funded. So we may be seeing layoffs. We may be seeing furloughs and all that. So unemployment compensation is there to basically be a safety net.

Allison (13:29):

No. Denise, is that something that applies to all 50 States or if there’s dentists and other States right now, where should they go to see if that’s something in their state?

Denise (13:40):

Well, you go to whoever is the economic security agency in your state. I saw some things about California where California already has eliminated this the one week waiting period to collect unemployment compensation in California. And so just go into Google and put it on unemployment compensation and your state and the agency should pop right up. We have Aaron Arizona. We have a, a really nice employer handbook about how taxes work and unemployment benefits work.

Allison (14:25):

Thank you Denise. I appreciate that. So we had some more questions if we decided to keep our employees on and see patients on an emergency, but still our, our team is seeing patients, do we have a liability issue?

Denise (14:42):

Well, here’s the thing. If you stay open and insist that your staff continues to see patients, you better follow the CDC protocols. And there’s some wonderful guidance CDC has published for employers and deals with some of the things that we all know to be common sense, like wash your hands and wipe down surfaces and all that. On the other hand, I gotta tell ya modern dentistry, there’s, there’s probably no safer place for anybody to be in the dentist law office. I mean, other than a surgery room, you know, in a hospital. I mean, my gosh you take every precaution as it is. So, you know, these protocols probably are, you know, second nature to you.

Allison (15:38):

Well, it is interesting because we are very used to bloodborne pathogens and we know how exactly how to handle that. We’ve been working in that for 35 years. I’m an airborne pathogen is slightly different and that is the concern. But you’re right. I mean, if there’s any experts in the world, it would be dentists. We, we deal with this every single day.

Denise (16:00):

Your question is to liability created from employees themselves with respect to the dental business is as you know, if an employee is hurt at work, her sole remedy is worker compensation. And all of you dentists out there listening, you all have worker compensation, right? You know where your policy is, right? You know where your rejection slips are. You got your worker comp a poster up, right? Okay. You better

Allison (16:37):

I do. I do. I listen to you. I really do. What if my employee, I think she’s sick. Do I need to get her tested?

Denise (16:50):

Well, if [inaudible] remember that this novel Corona virus is not like anything that we’ve seen in a long time. It’s not just like the flu, it’s similar to the flu, but it involved shortness of breath. It involves fatigue, it involves usually a cough and, and these kinds of things. So if the employee is showing the Copa 19 symptoms, yeah, I think you send that person home. And if they, they get a test, and by the way of this package goes through Congress, those tests will be free. But you get the person tested, but more importantly, you get the people around that person to also go in and get tested. Because the thing is this, as you mentioned, it’s airborne and it comes in what I understand are the droplets of, of, you know, if somebody sees was or cops, it’s those little droplets that go through the air and come and land on you. Okay. That’s how you get it. So the idea is is that yeah, they need to be sent home and the other folks who were around that person need also to be tested.

Shawn (18:22):

Do you know Denise, if an employee does test positive, are there any privacy constraints surrounding that, that identity would need to be aware of when it comes to sharing that information to other employees?

Denise (18:38):

Yes. if you have listeners out there who have 15 or more employees, you are covered by the Americans with disabilities act and you must keep this information confidential. On the other hand, if you need to reveal it in order to make sure that no one else is exposed to someone with a contagious disease, then that would be the only time if there were a direct threat to your business. Now having said that, the CDC is saying that anyone who tests positive for this COBIT 19 should not return to work until seven days after the specimen was collected or 72 hours after they are symptom free, whichever is later. So as a practical matter, if an employee returns to work after a coven 19 episode, that there’s no need to fear that employee at all or to tell anybody unless that employee needs some other kind of reasonable accommodation. That’s if you have 15 or more. If you have 14 or fewer employees, you are still required by Arizona law to keep the reasons for earned paid sick time confidential. So, and by the way, folks, this has nothing to do with HIPAA, okay? HIPAA is a whole different law dealing with medical providers with respect to their patients, okay? It does not deal with respect to employees. The laws you need to think about are their wages healthy families act here in Arizona and the the ADA at the national level.

Shawn (20:37):

Wow. That’s, that is a lot to think about. We have some other questions that have been sent to me. There some dentists

Allison (20:48):

That are wondering if their hygienist comes in and answers phones because they cannot treat patients for three weeks. Can they pay them a different amount, not their normal salary or hourly wage.

Denise (21:04):

This is, is different. A really tough question because you know, it’s not the hygienist primary duty to answer the phone. And she could argue, well, gee, I should be paid my whole salary. I think the way to do this is to make a little, a written agreement with the hygienist to say for a temporary time period. For example three weeks, for three weeks, I’m going to pay you X dollars an hour and not paid your regular salary and you’re only gonna do this work for this amount of time. Oh, and by the way, you’re still an at will employee. I think if, if everybody is on the same page with that, it needs to be documented. And then yup. The us department of labor also has published some guidance with respect to what to do. Now that we’re having the Kovac 19 prices, but yeah, that one needs to be handled very carefully. Oh, and this is not the, you know, your hygienists shows up to work in the morning. Oh, you’re, you can’t work as a hygienist today. And I’m gonna pay you 12 bucks an hour to sit here at the front desk and don’t, don’t do that please. Because the hygienist is very likely to say bye.

Denise (22:43):

And that’s not a good thing either.

Allison (22:46):

So I, I have another question. If you have somebody who’s salaried and you’ve said she can’t work, she’s a hygienist and you have her not coming in for the next three weeks and then you add a lot of days, extra days in April and may in order to make up the time. Is that going to be a big issue?

Denise (23:10):

Yes. And it’s interestingly enough, it’s an issue under Arizona law because our law says that everyone who works as a minimum wage and [inaudible] this is for all hours work. So let’s say you paid somebody and I’m understanding the question, you paid somebody in advance and you say, okay, I’m going to give you three weeks of pay here. You get to sit at home and binge watch Netflix. Okay, yeah, yeah. And you get to do that and I’m going to make you work three extra weeks in some other time and I’m not going to pay you. Well this is not a good plan. This was not a good plan because the thing is, is when that person is working, you know, in July for the three weeks, they’re going to need to be paid because they’re working. And so I think this swapping back and forth is going to be, again, unless there is an agreement, and I really don’t know if our state labor department is going to be able to enforce that agreement because don’t forget, you can have all kinds of verbal agreements with folks. Oh yeah, yeah. We’re having a crisis and this is the way we’re going to do things and then you do it that way and well, you never told me that this is how we were going to do it and I’m going to file a complaint and believe you, me, nobody complains about being paid too much. They only complain if they’re paid too little.

Allison (24:59):

Yes, yes. I guess I’m thinking it from the standpoint of my husband, the attorney, if his associates don’t work for the next three weeks and then they bill that time over the year because they’re salaried, it doesn’t seem to affect them. So I guess I was thinking a hygienist would be the same.

Denise (25:19):

The big difference between if I made, there’s a big difference between a hygienist and an attorney. Okay. Let me tell you what that is. An attorney, a teacher, and, and a clergyman. Okay. Or clergy woman do not have a salary basis in the fair labor standards act. In other words, you can work in associates 24 seven. Okay. And not having a salary basis. Yeah. And, and they do. And I, I teased my law firm colleagues all the time about this saying, you know, we do have been a mum wage in Arizona. It is $12 an hour. But the thing is, is absent that, you know, teachers doctors and lawyers not the clergy, forgive me, teachers, doctors and lawyers do not have a salary basis. However, a a dental hygienist does. And so for example, if we pay a dental hygienist we have to pay [inaudible] want her to be exempt and referred labor standards. We have to pay her $684 a week under the new, the new department of labor rates. So yeah, I mean, the, the thing is, is this is a different story with, with associates and billing and whatever. You can work the poor little fingers to the bone.

Allison (26:45):

Well, that’s not quite fair, but I understand. So I guess

Denise (26:48):

It’s not fair at all.

Allison (26:51):

What is your advice then? What if we’re capable of paying our employees because you have enough saved, what should we do? If you’re not capable of paying for your employees, what should you do? What’s your parting advice?

Denise (27:07):

My partying advice is that this crisis will be over at some point. The light at the end of the tunnel is not the terrain when that happens, not if that happens. When that happens, we had it before all this happened, a 3% unemployment rate. It’s hard to find employees and my feeling is it’s much better to hang onto the employees you have by giving them either paid time off or at least job protected time off to go ahead and keep them so that you don’t have to scramble when this is all done because everybody in the world is going to want to come see their dentist when this is done right.

Allison (27:56):

Well that we hope that we have. That’s true and I think that Sean and I often talk about how valuable team is and how important it is to take care of them. In this crisis though, we understand that not everyone has that savings. I mean, not everyone has been practicing for 20 years. Not everyone has that ability and so we have to be mindful of that.

Denise (28:18):

I think that the big thing with your employees always is to be transparent about what you’re doing and don’t make anything a mystery, you know, because in effect, we are all in this together.

Shawn (28:35):

Denise, I’m really curious, you know, and in your experience, have you seen anything that even resembles this? Not, not like the actual strain, but I’m just saying the, the ways in which you know, just nationwide we’re responding by closing workplaces and things like that. Have you seen anything like this?

Denise (29:00):

The only thing that I’ve seen like this has been and it’s not quite with closing places. It’s with hoarding of food and, and that kind of thing was in the Cuban missile crisis back in 1962 when we were very, very close to going to war with Russia and we all had a duck under our desks and hope that that was enough to save us. And you know, people at that time were hoarding and emptying the grocery shelves and going into their bunkers and that type of thing. So, yeah. Mass hysteria and what, what is needed now is leadership. And I think the ADA is providing you folks with leadership by saying, okay, here’s something we can do to, you know, stand together with the American public and to say we are a part of a, a way to at least keep each other at this social distance for now until this passes. And indeed this will pass. Indeed, we will get through this. We need to be brave, but we also need to be proven.

Allison (30:23):

Absolutely. And I think Shawn and I felt like this was important information because we do need to leave during this time and help our fellow, our fellow dentists and our fellow team members and Denise, we just want to say thank you again so much just for your time and your guidance. And for our listeners out there, we know this is troubling times and there’s a lot of just changes that are happening. It seems almost every hour. So if you’re looking for professional advice, please feel free to reach out to Denise and again, you can contact her. Denise, can you share that email one more time?

Denise (31:01):

Yes, I’m [email protected] And I really appreciate this opportunity, Allison and Shawn to talk to your audience and you know, hang in there folks. We’re going to get through this. We’re going to make it through.

Allison (31:22):

Thank you so much, Denise. You take care, everybody be safe.

Denise (31:27):

Thanks again folks.

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