Many states are now beginning to see stay-at-home orders relaxed and elective surgeries resuming. Here in Arizona, Governor Ducey signed executive order 2020-32 allowing elective surgeries, including dental surgery providers, to resume beginning May 1st. Dentists are eager to get back to work, but are facing new provisions and minimum criteria for reopening their offices. Questions about how to handle employees and patients in the wake of these new conditions abound. In this interview with labor law expert attorney Denise Blommel, Allison and Shawn tackle the many concerns dental practice owners might have as they reopen their practices.
Some of your primary concerns may relate to your employees. Denise spells out how to recall employees that have been furloughed, and how this changes their eligibility for unemployment. Allison and Shawn discuss how to handle employees who may not want to come back to work and the reasons that they could be legally entitled to stay home. Denise demystifies the Families First Coronavirus Response Act (FFCRA) and discusses how it may apply to your employees. She explains the six specific reasons they could be eligible for emergency paid sick leave from the employer.
This discussion also addresses safety issues both for the employee and the patient. How do you handle a sick employee, or a potential exposure in your office? Dental practices face the challenge of complying with state mandated minimum criteria for reopening. Some of these criteria seem impossible for dental practices to fulfill, such as COVID-19 testing of patients and at risk health care workers. You will be encouraged to hear that dental organizations are working on taking care of these impossible guidelines, so that your practice may legally open even if you have no access to COVID-19 test kits for example.
Lastly, many small business owners, including dentists, have questions about the Paycheck Protection Program (PPP). In this interview Denise weighs the benefits of the PPP loans and gives a few practical tips for those pursuing this loan.
Many of you are ready to jump back in to work and make up for lost time. Hopefully this episode is a resource to you as you navigate the many facets of reopening your dental practice in this new normal.
Full Transcript Below
Hey guys, this is Shawn and Allison here with the Authentic Dentist Podcast and back by popular demand, a. lot of you guys really liked our one episode with labor law attorney, Denise. And we kind of discussed exactly how to navigate this current crisis because a lot of people are looking for answers and not a lot ofclarity on where to find those answers. So we just want to welcome you again Denise and say thank youso much just for spending the time with us.
Well, thank you so much for the opportunity to be with you and to give some information to our listening audience.
Denise, we really appreciate this. You’re always so wise and calming and we really appreciate you takingtime to do this.
No, thank you so much for your kind words.
There’s any I need even just curious, just starting out like I don’t know. Like what rate has legislation evenbeen coming out to try to keep up with the new demands that are put on just because of this pandemic?
It has been amazing to see Congress act as quickly as it did with the cares act with the family’s firstCorona virus response act. We’ll see how this new federal legislation to bolster the Cares act is going togo. But it, it is just been amazing to see how quickly Congress has acted. Looking across the nation. State legislatures have certainly been busy, but I’ll tell you who has just been amazing are the governors of theStates with their executive orders. And it has just been phenomenal. Here in Arizona we have many, many executive orders addressing all kinds of details involving this pandemic. So it has been very impressive tosee what our nation’s governors have done.
So for our listeners, today is Thursday, April 23rd, and our governor here in Arizona has done a, amandate that we’re allowed to open on May 1st. Is that correct?
So elective surgeries can take place starting here May 1st and here it is.
I know, I mean, things are moving really fast.
Yes they are.
So some of the things that people have asked me are their employees are making quite a bit of money athome on unemployment and some employees don’t want to come back if their jobs are offered to themand they don’t come back. What happens?
Well, the thing is is that if the job is offered to them, then they’re not fired anymore or laid off anymore orfurloughed anymore. So they’re not on unemployment anymore. And they’re, they’re going to need toreturn. And they can, the problem is with really low wage workers. And fortunately that does not apply tomost of your listeners out there, but anybody who makes less than $15 an hour is not going to have anyincentive to get off of unemployment.
Well, so Denise, that’s the interesting thing. A lot of the support systems in the dental office are kind oflower earning position and it’s not based off of an 80 hour full time you know, twice a week, a referencebased off of 60 hours or 30 hours a week. So that’s where the unemployment coming in at like a normalfull time. When you take the wages and you know, not divide them by 40 hours, but divided by 30 hours,it kind of can, a lot of the support I guess in a dental office can fall in that category.
Okay. And so those folks are, are going to be my belief motivated to stay on unemployment. And thething is, is that I, you’ve got to make it clear to them that they have a job and make it clear to beat. Yet thedepartment of economic security here in Arizona with terrible unemployment they have their jobs,especially if they’ve been on furlough that they’ve been recalled from furlough, they’ve been recalled fromlayoff and they have a drop. And if they turned down that job, then they don’t get the, now, I think themoral of the story here in the long run as we reopened the economy is that we’re going to have a lot ofworkers out there who are going to demand $15 an hour.
Yeah, I can, I can see that might be a challenge. Hmm.
Speaker 6 (06:20):
So for the dentists and small business owners, if they communicate with their team member and say, okay,we are ready to have you back, things are open. You know, the new normal here and that worker doesn’twant to, the small business owner or dentist needs to contact the department of economic security and saythis individual that’s been receiving unemployment officially has a job extended to them, isn’t taking itjust so that kind of funding is cut off,
That that would be the case, that basically you would be protesting the unemployment at that point forthat individual. And I think that the thing to do is to tell the individual that to say, look, we’ve got a jobhere for ya. And if you don’t want it, that’s fine except that you’re not going to get unemployment to sithome and collect a, collect a windfall. Basically, because there still is now, not to the huge extent thatthere would have been if you were on the hook as a small business for the entire $600, but there’s still, it’sstill against your experience rating to have that.
You know, so the, the thing is is that it’s in your interest to be highly communicative with these employeesand say, look, we’ve got your job and we don’t want that drawback. I want to sit at home onunemployment and you know, binge watch Netflix. Well, no, I’m sorry. That’s not how it works folks.
Yeah, we do have, we do have a couple of challenges though with some, because we are dealing with thepandemic and we’re in a dental office, so we do have employees that are afraid to come back becausethey’re pregnant or they’re immune compromised. How should we handle that?
Well, here’s the thing, and we talked about this when we were together last time. The modern dental officeis like a surgical suite in a hospital. You keep everything meticulously clean. And the thing is is toreassure employees that when we invite them to come back, that we say we’re taking every protocol thatis not only recommended by the CDC, but also recommended by the dental association and by best practices. And of course we’re following all the OSHA guidelines. So that’s important. If an employee ispregnant, then does her doctor say that she cannot be in this environment? And if that is the case, then shewould be entitled to the families first Corona virus act response act, the FCRA, the emergency paid sickleave, you know, because her doctor says she cannot be there. Same way with the employee who’simmune compromised that but she would need a doctor or healthcare provider to say that.
And if not, then you know, she’s not entitled to those payments. Moreover, as you know, those paymentsare kept they’re capped at 80 hours. They’re capped at $5,100. So the concept here is the employee whosays, I’m too scared to come back. Well, what are you scared of if you’re immune compromised? Is there away we could make an accommodation? And of course, if you’ve got 15 or more employees, you need tomake an accommodation under the Americans with disabilities act. Same way with our listeners who theyhave 15 or more employees. If the employee is pregnant, we may need to make accommodations undertitle seven of the federal civil rights act. This concept of, well, I’m, I’m just too scared. I, I don’t want tocome back. And if it’s an irrational fear that doesn’t cut it.
Can you talk a little bit about the law you just addressed? I don’t, I don’t know much about it.
Well, the BFF CRA, the family’s first Corona virus response act, this is the law that came out before, rightbefore the cares act. And this is the law that says that every employer of less than 500. And I wouldpresume that’s all of our listening audience here. You have less than 500 employees. Every employer hasan expanded family medical leave act to include only one group of people on that is people who have tostay home and cannot work from home. But they have to stay home because their children are out ofschool or out of daycare. There’s no daycare, there’s no school to take care of the kiddies. And that’s the,that’s the only reason they cannot work. That’s one group of folks and they’re entitled to an extendedfamily leave which for the first two weeks is unpaid and the last 10 weeks is paid.
Again, those folks are going to be few and far between. Okay. Because again, the only reason they can’twork is because the kids are home from school and they have to be under 18 and there’s no daycare. Thenthere are the, the other folks who get the emergency paid sick leave. Again, 80 hours emergency paid,sick leave, paid at full rate if it’s for your own health condition or you’re living with someone that you’retaking care of for their healthcare condition. And if you’ve got the kids at home and whatever, it’s twothirds of the pay. All of this, by the way, for our listening audience, you can find atdol.gov/agencies/whd/, pandemic and that’s an excellent website because it’s got all of this on there. Okay.And how to deal with it. By the way, everyone needs to post the poster that is there at that website for theFFC AR and the very specific reasons why you get these particular benefits. Okay? Okay. Could you justrepeat the website?
You bet. It’s a, of course, www dot D O L that stands for department of labor, not gov. It was of coursewith the federal government slash agencies. Slash. W, H, D. That stands for wage hour division slash,pandemic. And that is, that is my go to because they’ve got AQS on there. They’ve got first the poster.You get there, the laws you get there. It’s, it’s really a, a great, great website. So thank you so much. Markon your yeah, Andy wasn’t here. Okay. And the, just to go over those there are six reasons. Qualifyingreasons for the emergency paid sick leave. Number one, if you’re quantifying, okay. And you can’t work.Number two, you’ve been advised by a healthcare provider to self quantifying and that would be our galwho’s pregnant or our fellow who’s immune compromised. Okay.
Number three, you’re experiencing the symptoms of COBIT 19 and you’re seeking a medical diagnosis.This happened with one of my clients here recently. And those are first three. You get paid full rate andthe next three you get paid two thirds raid two thirds caring for an individual subject to a quarantine order,a number five caring for the kids. And number six is kind of a catch all because it says any othersubstantially similar condition specified by health and human services, they haven’t specified it yet. So inany event this is this is the poster that you need to put up and it’s got all of that in it.
So can we go back to the pregnant employee because the pregnant employee, it’s not really a two weekquarantine. I mean, she might be out for six months. Are we paying her for that six months?
Nope. You don’t have to. And for those of our listening audience that you have 50 or more employees,that would be the family medical leave act that you know, but that’s only 12 weeks long. So if we have anemployee who’s pregnant and her doctor says, I’m sorry, she needs to be out for the, the balance of thepregnancy and it’s, you know, she’s got five months to go on the pregnancy, then it’s your choice whetheror not you wish to hang on to her. You know, after that time. And if you do a job protected leave ofabsence might be the way to do it. Many times I suggest for small employers to have a personal leave ofabsence, which gives you in your employee policies, which gives you an awful lot more flexibility whenyou’ve got these kinds of cases. Of course those of you with 15 or more employees need to understandthat under title seven there you cannot discriminate against an employee because she’s pregnant. On theother hand, the U S Supreme court recently told us that just because you give an accommodation to onegroup of people does not mean that you have to give it to everybody else. So again, with a pregnantemployee, a lot depends upon what her doctor has to say and what else is going on. But to me the bottomline with our listeners out there who were in the dental field, you guys have squeaky clean workplaces.
It’s not like some places where you know, people are going to be exposed and, and really run a huge risk.You’ve got lots, lots of protocols in place.
And we do, there are some concerns though, we do not want anyone to come in that sick. An employee ora team member that comes in sick. So if someone comes in, they run into fever, we send them home. Arewe going to need a test, a covert test in order to pay them for the two weeks? What if they have a 24 hourflu?
Well, yeah. Good, good. Practice I think would be to tell both your patients and your employees the samething. And that is if you’re sick, we can’t see you okay with the patient. We can’t see you if you’re sickwith the employee. Oh, I want to come to work. Well, you can take your temperature. And even those ofyou who have more than 15 employees out there, the EEOC, the equal employment opportunitycommission issued some guidelines here recently and yes, you can take your employees temperature.Okay, you need to do it in a confidential setting and that type of thing. But the concept is with youremployees, if they’re sick, you don’t want them coming to work.
I totally agree. Totally agree.
So I have two questions. One of them is related to the poster that kind of has the six conditions and I thinkone of the situations that I have with one of my employees, it’s probably on number four where they’recaring for a family member. So I just talked with my employee, we’ve been trying to get through this andshe gave me permission to kind of share the situation in a broad sense. And that is that right after kind oflike the shelter in place, although I wasn’t that word, but right after that either came out from a duty, Italked to her and I said, Hey, you know, you can come in because one of the central business, but I knowyou live with your mom and your primary caretaker. And she’s like completely underlying conditions likeactually just developed lung cancer. Like she’s completely high risk. So my my employee decided not tocome into work. So we didn’t fire her people and terribly left and right now I don’t think she actually hasthe, her mom has any sort of written things from a healthcare provider saying that she should be, sheshould be quarantined or something like that. And that’s just what she’s needing so that she can get somesort of unemployment from the department of economic security or does she not qualify forunemployment voluntarily left just to protect her mom?
Well, I think that in this situation she is taking care of someone. And again, it would be very pleasant ifmom in this case, something from the doctor that said she should self quarantine because of her lungcondition. And I’m going to go back here. Number four on this family’s first coronavirus response act,emergency paid sick leave caring for an individual. So it could be her mom subject to an order describedin one, which is the stay at home or self quarantine is described to number two, which has been advisedby a healthcare provider to self quarantine. And the idea is as this person would be getting sick leave,your employee would be getting sick, leave pay from you. She would not get unemployment, she wouldbe getting sick, leave paid from you. Now if you followed her, okay, in other words, you said, well, youknow, as long as you’re homeless, mom, you, we’re not gonna pay you I’m gonna furlough you.
And as soon as this covert crisis is over, you can come back to work. Well, in that case, if she werefollowed, she would be entitled to unemployment and not to the sick leave. Okay. So a lot depends uponhow you would classify this employee if she’s still working for you. And you know, maybe she can evenwork from home if she can work from home, she’s not entitled to unemployment or the Patriot cleans.Okay. But if she can’t work from home and she’s taking care of mom and she’s still on your payroll, if youwill, then she fits within number four here on the qualifying reasons for leave, for emergency paid sickleave. And the beauty of paying that is that you get a tax credit on that as an employer, which is nice.
Okay. so that kind of leads straight into the PPE loan, but just before we go right there, so let’s say anexecutive order comes to, and I’m not exactly sure that’s what you see is recent elective services. Youknow, I don’t know if that’s considered an executive order, was it?
That comes out. I don’t know if any specific similar said something, but I think it was mentioningsomething about a dental practices now needing to test for Covin. Now does that change the CDCguidelines? Because if, if practices don’t have access to test kits, does that mean that they can’t legallyopen?
So Sean the Arizona dental association and the ADA are handling that you can’t have a mandate that isimpossible fulfill,
Right. That’s what I was wondering. I was like how, because then it almost like how do you enforce thatand how does the labor laws enforced this one? It’s not something you guys can put in practice.
We’re handling that. That’ll be handled before May 1st.
Okay. Yeah. I’m looking at the executive order right now. It says the department of health services here inArizona will establish a minimum criteria including dental surgery providers, must demonstrate an arequest for an exemption from the stay at home continuing supply of personal protective equipment willsupport the facility, which of course you, you have adequate staffing and bed availability. Of courseyou’ve got that implementation of a robust [inaudible] testing plan to test all at risk healthcare workersand each patient prior to the scheduling of an elective non-essential surgery or during the preoperativetime period, robust testing plan to test all at risk healthcare workers. Okay. And each patient.
And I think that will be a standard at some point. But since we don’t have tests, it’s not a, it’s not possibleunless you’re going to order a million tests.
Okay. Yeah. So the short term fix would just be to let patients that have any sort of symptoms, they justcan’t come into the practice.
That is what we’re discussing. Yeah.
Okay. Alright. I’m looking also your folks at an implementation of the universal symptom screening. Ofcourse that’s taking their temperature enhanced cleaning process. You already have that policies andprocedures, appropriate discharge planning. You’ve got that policies and procedures prioritize elective,non-essential surgeries based upon urgency. Okay. Well, yeah, it, it basically says you gotta test all yourpatients. You don’t have to test all your workers, just the at risk ones.
Speaker 2 (25:51):
And again, we don’t have a million tests, so we can’t test our patients, but that would certainly be nice atsome point to have that.
I, I have a couple more questions about just if the entire office was exposed, let’s say a patient did slipthrough and we found out that they were sick. When we have to close down the office for two weeks,
Maybe, maybe not a lot, depends upon it. The patients develop covet or does this person havesymptomatology if some other kind of disease. You know, and I think we need to look at this in terms ofwhat if you had a patient who came with another contagious disease, what would you do? Well, youwould go around and figure out where did this patient go? What did he or she touch? What types of ofthings are we dealing with here? Now we know from the literature that’s out there and the, all theguidelines and whatever that, how coven is transmitted, you know, by, by there with these little dropletsand the droplets get onto surfaces and live there for days. But they in the air, they only live for a couple ofhours on certain surfaces. They only live for a couple of hours on certain surfaces. They live for days. Sodo we have to close the whole place down? I don’t know.
And I guess at my speculation is no.
Yeah, I, I think what you would do is let’s, let’s assume that you had some, some noxious substance that’sescaped. Okay. What would you do? Well, you clean it up, right? And I think you do the same thing hereis you clean up, make sure that if there were any points of contact with this person that you’ve identifiedthose and, and go forward.
And, and that is my assumption too. You know, we’ve been dealing with HIV since the eighties andcertainly we find out later that someone has been had HIV that we’ve worked on. But because we’ve beendiligent about all the protocols, we know, we know the rooms are clean, we know we’re safe and it’sterrible for our patient, but it isn’t, it doesn’t affect us. And so hopefully we are keeping our operatoriesand our, our people that safe.
So Alison, did you want to pivot to PPP before we closed or did you want to,
Yeah, let’s definitely talk about PPP because wow. Lots of questions. Can you get us a little overview?
Okay. Paycheck protection program alone is through the SBA and the, the beauty of these loans is theyare forgivable. I’m going off of an article that came in today from the Phoenix business journal plug forthem. It says nearly 20,000 Arizona businesses have received CPP loans collectively worth 4.8 5 billionduring the first round of funding. And of course we were assuming there will be a second round offunding. As you folks know the money all ran out after 13 days. The article here goes on to give someideas to business about how to get loan forgiveness. And frankly, the whole purpose behind the PPP is togive business money to cover the cost of keeping people on the payroll. Okay. That’s the concept. And themore employees you hang onto on the payroll, the more the loan will be forgetting.
So the business journal talked to this fellow named James Lozano, who’s in CFO for hire, and he says thefollowing for best advice for businesses to get loan forgiveness is number one to lay out a plan.Remember this line is for eight weeks. It’s not for any more. It’s for eight weeks. So you suggest puttingan eight week calendar together. Number two is to set up a new bank account. Now please understandyou’re dealing with uncle Sam here. So you know, there’s going to be a lot of scrutiny of this. And he’ssaying don’t mingle it with your regular operating funds. Thirdly, he’s talking about creating a spreadsheeta special log or spreadsheet on this to make copies of all important documents, keep it in a forgivenessfile and work with your payroll company on this. And that’s really important no matter what you do withrespect to either having the loan or having these payments of emergency sick leave and whatever is, all ofthese are going to be treated differently than you normally treat payroll. Okay? So everything is, isdifferent. But the bottom line with the PPP loan rules is read the fine print,
Spoken like a true attorney, read the fine print,
Read the fine print, and realize there is one big disadvantage and I think PP lump and that is this. And thiswas brought up by one of my clients recently and I think it’s a good point. And that is you’re bearing yoursoul. So the SBA, okay. And CSBA is uncle Sam. That’s the government. And the government hassomething called the freedom of information act. And G do you want other people knowing about howyou bare your soul to uncle Sam to get some dollars? So the thing to do is to make sure that whatever youtell these people, you get some kind of agreement of confidentiality. So, and we know the dental businessis competitive and you sure as heck don’t want other people, your competitors to come in and say, Oh gee,ABC dental got all this bunny and look how they did it and look at their assets and whatever. You don’twant that. So it’s really important to realize that you know, other folks are going to be looking at thisinformation and sure these are forgivable loans. It’s 1%. And you know, you think, Oh, this is free money.But like Milton Friedman used to say, there’s no such thing as a free lunch.
So you would advise for sure those people that have you know, their relationship with their payrollcompany or have access to their CPA to definitely make sure that they get this from that professional intheir life to make sure that they’re not missing.
Right. Read the fine print.
Well, Denise, this has been amazing. Thank you so much. I feel so much better. I think lots of our dentistsare gonna feel much better. If someone had a specific question, how could they get in touch with you?
Well, the best way to get ahold of me is email. I’m Denise, D E N I S [email protected]. And happy to,happy to talk with you. What I’m really interested in and would love to participate in in the future withyou too is reopening our practices and getting back to work and what the economy is going to look like.Because I think we’re really not writing to be like we used to be. There’s not going to be a normal again.There’s going to be something that’s different and I, I would really like to get other folks ideas about that.And for your listeners out there, if you’ve got ideas about this, please share them with me.
We’ll stay tuned. That’s our, our topic of next week.
Yeah. And just, I just also wanted to thank you, Denise, because even the way you opened it up, you gavea shout out and honored our leaders, especially just the governors. And that’s just something that Allisonand I, I’ll have to define it for because it’s so easy to explain mud at the ways that leader aren’t doingthings perfectly, but to just have that, that grace and understanding and human wisdom to proceed, likethey’re doing such a great job with what they know and trying to manage all of it. I just thought it wasawesome that you’ve met with that. So I just wanted to thank you for that.
Well, leadership is important and I, I really, the podcast that you folks did on leadership and especiallyleading in these times and it it really makes a difference.
Speaker 1 (35:48):
Thank you again so much. It’s been a pleasure. Thank you, Sean. Thanks, Alison. Take care.
Speaker 1 (35:53):
Take care. Thank you.
Speaker 2 (38:12):
Speaker 1 (38:12):
Thank you for listening to the authentic dentist podcast. To join Alison and Sean on this journey, hit thesubscribe button to never miss an episode. Here’s to your success. Express yourself fully live, authentic.
Speaker 2 (38:29):
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