COVID-19 EMPLOYMENT LAW INSIGHTS AND RESOURCES

Posted on by Blanchard & Walker

The COVID-19 pandemic continues to present many challenges for the Michigan workplace.  The law and circumstances are changing almost daily.  We are regularly monitoring and updating workplace rights resources we have found helpful.  Additional Blanchard & Walker Resource Pages and Factsheets provide more detailed discussion on specific COVID-19 topics:

Keep in mind this is not intended to be legal advice.  Legal rights in any individual case need to be evaluated in consultation with an attorney.

WORKPLACE RIGHTS IN A COVID-19 PANDEMIC

Executive Orders: A narrow decision by the Michigan Supreme Court has invalidated many of Governor Whitmer’s Executive Orders issued to tackle the COVID-19. However, some of those orders will survive if they derive from executive powers outside of the state of emergency.  A complete list of the Executive Orders Issued by Governor Whitmer is still available here. The impact of the outbreak and the various sheltering measures can be followed: Michigan Coronavirus Map and Case Count. 

In the absence of the Governor’s emergency powers, the Michigan Department of Health and Human Services (MDHHS) and Michigan Occupational Health and Safety Administration (MIOSHA) have stepped up and issued orders under their own regulatory authority to help protect Michigan workers.

PUBLIC GATHERINGS AND MASK USE: Michigan Department of Health and Human Services has issued regular updates and emergency orders, as of May 15, 2021 most mask requirements have been lifted for vaccinated people, both outdoor and indoor.  This leaves individual businesses and public places with a lot of discretion on how to enforce mask-wearing.   According to the May 15, 2021 Order, businesses must make a “good faith effort” to make sure unvaccinated people wear masks. A “good faith effort,” can be any of three options: Put up signs to say unvaccinated people must still wear masks, ask customers if they are vaccinated (or have any other exemption) or simply require everybody to wear masks.  To read the full order, click here.

WORKPLACE SAFETY: Michigan Occupational Health and Safety Administration on October 14, 2020 issued Emergency Safety Rules for workplace safety. Workplace safety guidance from the CDC and MIOSHA is rapidly changing.  Click here to visit MIOSHA COVID Safety Guidance and Frequently Asked Questions.

In October 2020, the Michigan Legislature finally acted to pass new laws to clarify the rights of Michigan workers and businesses.

EMPLOYMENT RIGHTS: Public Act 238 of 2020 addresses legal rights for employees experiencing Covid-19 related symptoms, and to protect those whistleblowers who raise Covid-19 safety concerns. Under the law an employer is prohibited from discharging, disciplining, or otherwise retaliating against an employee who does any of the following:

  • Stays home from work because they contracted COVID-19 or because they are experiencing the principal symptoms of COVID-19 even if they later test negative (the employee must seek a test within three days).
  • Opposes a violation of this act.
  • Reports health violations related to COVID-19.
  • * The Act does not apply to certain healthcare workers, correctional facility workers, and first responders and others.

BUSINESS IMMUNITY: Public Act No 236 of 2020 (Effective October 22, 2020), the “COVID-19 response and reopening liability assurance act” purports to limit workplace liability for COVID-19 related lawsuits. Under the law, businesses or employers are immune from COVID-19 related lawsuits, but only if they have complied with all relevant laws and government guidance in effect at the time (including all executive orders that had not been denied legal effect at the time, state agency guidance, or local public health orders).

*Return to Work-to-Work Resources and a complete discussion of workplace safety guidance from the Governors Office, MIOSHA, and other relevant authorities, including industry-specific reopening guidance, is available here. 

 

Unemployment Benefits and COVID-19

On October 20, Governor Whitmer signed Senate Bills 886 and 991, codifying her previous Executive Orders regarding unemployment benefits. An analysis of the Bills can be found here.

The Bills adopt the previous criteria under the Governor’s Executive Orders. Unemployment benefits are available to individuals “considered to have left work involuntarily for medical reasons” if that individual leaves work for any of the following reasons:

  • The individual is under self-isolation or self-quarantine in response to elevated risk from COVID-19 due to being immuno-compromised.
  • The individual has displayed at least one of the principal symptoms of COVID-19, which are a fever, atypical cough, and atypical shortness of breath.
  • The individual has had contact in the last 14 days with someone with a confirmed diagnosis of COVID-19. Contact for the purposes of healthcare exposures is defined as follows: a) being within approximately 6 feet (2 meters) of a person with COVID-19 for a prolonged period of time, without appropriate personal protective equipment consistent with Department of Health and Human Services recommendations; or b) having unprotected direct contact with infectious secretions or excretions of the patient (e.g., being coughed on, touching used tissues with a bare hand).
  • The individual is required to care for someone with a confirmed diagnosis of COVID-19.
  • The individual has a family care responsibility as a result of a government directive.

The bills also restore some but not all of the emergency expansion and reforms of the unemployment benefits system that had been in place under the Governor’s Executive Orders. 

  • The Bills extend unemployment benefits for workers from 20 to 26 weeks until the end of 2020.
  • The Bills maintain the requirements that an individual must be actively seeking employment.
  • As of the October 20, 2020 effective date of the bills Michigan unemployment claimants will once again be required to certify an active search for work – even if they are on a temporary layoff or unable to work due to caregiver responsibilities. 

*An expanded discussion of COVID-19 Unemployment Benefits and Resources is available here.

 

FFCRA Paid Leave and COVID-19 [Expired Dec. 31, 2020]

The Families-First Coronavirus Response Act (FFCRA) created new paid leave benefits for many workers of companies employing 500 employees or less through December 31, 2020. Subsequent laws have extended the program, but only on a voluntary basis.  This means that qualifying employers can still take advantage of a tax credit for providing FFCRA benefits, if they choose to do so.  In certain qualifying circumstances, these benefits have been an essential lifeline to support payroll and protect return-to-work rights for workers affected by the Coronavirus Outbreak.  The US Department of Labor has many resources on FFCRA coverage, including workplace notices that covered employers are required to post.

 

Michigan COVID-19 Executive Orders

A decision by the Michigan Supreme Court has invalidated Governor Whitmer’s Executive Orders issued to tackle the COVID-19. The Governor maintains a COVID -19 website with regular updates. A complete list of the Executive Orders Issued by Governor Whitmer is still available here. The impact of the outbreak and sheltering measures can be followed on Michigan Coronavirus Map and Case Count. 

In the absence of the Governor’s Executive Orders, the Michigan Department of Health and Human Services (MDHHS) and Michigan Occupational Health and Safety Administration (MIOSHA) have stepped up and issued orders to help protect Michigan workers.

Michigan Department of Health and Human Services: December 18, 2020 Emergency Order extending safety measures through January 15, 2021. 

Michigan Occupational Health and Safety Administration: Emergency Safety Rules

* Return to Work-to-Work Resources and a complete discussion of workplace safety guidance from the Governors Office, MIOSHA, and other relevant authorities, including industry-specific reopening guidance, is available here. 

 

ADA Accommodations, Family Medical Leave Rights and COVID-19

Workers who are aren’t covered by the FFCRA paid leave benefits may still be legally entitled to take unpaid medical leave or seek reasonable accommodations.   According to EEOC guidance: The ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three major ways. First, the ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

 

Workplace Safety and COVID-19

Many Michigan workers have been asked to report to work, either because their employer has determined they are critical infrastructure or other essential employees.  These include health care workers and first responders.  For those that are out in the public during the outbreak effective workplace safety is the highest priority.   Discrimination or retaliation for raising workplace safety concerns is illegal.

*A more comprehensive discussion of Workplace Safety Resources with Industry Specific and Local Guidance in Michigan is available here.

 

COVID-19 Related Fraud Schemes 

The ongoing pandemic has created new opportunities for fraudsters and criminals seeking to exploit the uncertainty and chaos, from imposters filing false unemployment claims to healthcare providers billing for unproven of non-existent services. The US Department of Justice, has announced a priority focus on investigating and charging certain COVID-19 related frauds.

 

Wage Payment Laws and COVID-19

Workplace disruptions related to COVID-19 are raising some questions about fair pay for work performed.  Generally speaking, employees who are laid off are still entitled to be paid for hours and days actually worked.  Asking employees to “volunteer” to work unpaid at for-profit businesses is almost always illegal. Time spent passing medical clearance checks at work may be compensable.

 

Eviction Proceedings and COVID-19

On September 1, 2020, the Centers for Disease Control and Prevention (CDC) issued an order halting residential evictions to help curb the spread of COVID-19. The order will be in effect through the end of 2020. The Michigan Supreme Court issued questions and answers on the CDC moratorium to provide guidance to Michigan courts.  An Amendment of Administrative Order No. 2020-17  lays out new process for “Priority Treatment and New Procedure for Landlord/Tenant Cases”.  SCAO Form: Verification Regarding CDC Eviction Moratorium (DC 511)

Financial and other assistance may be available for residents unable to pay rent because COVID-19 related financial instability. The Michigan State Housing and Development Authority (MSHDA) Eviction Diversion Program (EDP) is designed to keep Michigan residents who fell behind on their rent during COVID-19 in their homes. The program utilizes a special court process to get fast rental assistance for renters who have been impacted.  Eligibility criteria and application forms are available on MSHDA’s website.

 

Michigan Education and COVID-19

On June 30, 2020 the Governor released Executive Order 2020-142, detailing the plans for preK-12 public schools to reopen for the 2020-2021 school year. Michigan Department of Education Resources are available here.

 

Immigrant Rights and COVID-19

 

Workers Compensation and COVID-19

  • Emergency Rules For First Responders Who Contract COVID-19, (effective March 30, 2020-September 30,2020) provided a limited presumption that healthcare workers and first responders contracted the virus at work.  For current presumptions and eligibility for worker’s compensation benefits related to COVID-19, contact a workers compensation lawyer.

 

Domestic Violence and COVID-19

 

…More COVID-19 Resources