Disclaimer: This guide is for general informational and promotional purposes only. Nothing herein constitutes legal advice. Every business is different and faces its own unique set of challenges. Do not take any action with respect to your business until you have obtained specific guidance from a qualified professional.
One thing that’s been consistent throughout 2020 is that nothing stays the same for long. Shortly after I published my September 2020 COVID Guide for Michigan Employers, Governor Whitmer issued more orders, and then in early October, the Michigan Supreme Court issued its decision invalidating the 1945 Emergency Powers of the Governor Act on constitutional grounds. This created even more confusion about what the law is.
Accordingly, I am updating my guide to give business owners some direction. I generally recommend that business owners is to stay the course and continue doing what they have been doing with respect to COVID. You should maintain the same protocols for your customers and employees because OSHA and the Michigan Department of Health have the statutory authority to issue (and have issued) many of the same safety protocols that were enacted through executive orders. If you are concerned that your existing protocols are too stringent or otherwise have compliance concerns, retain an attorney to advise you.
Further, even if you are not concerned about government agencies, there is always civil liability. Although the Michigan Legislature is working on laws to define and limit an employer’s COVID-related liability, compliance with agency standards continues to be the benchmark for the proper standard of care. When I represented OSHA during my time as an Assistant AG, I attended numerous depositions where OSHA citations formed a base for a subsequent wrongful death or injury lawsuit against the employer. Make no mistake, plaintiffs’ lawyers are already filing a number of COVID-related lawsuits against employers who may be out of compliance or otherwise negligent when it comes to protecting their employees and customers. As a business owner, you are looking at millions of dollars in potential legal liability, and it is not guaranteed that your insurance is going to cover a COVID lawsuit. If you are still without a compliance plan, or your plan is out of date, consider hiring an attorney.
Review the latest guidance from the CDC and the State of Michigan.
The State of Michigan maintains a very helpful State of Michigan COVID FAQ that answer some of the most common questions, including concerns about unemployment insurance, layoffs, and other related concerns. OSHA also maintains an informative industry-specific guide for COVID compliance. Also, review the latest orders from the Michigan Department of Health and Human Services that in large part reenact the same mask and gathering restrictions that were in effect under the Governor’s executive orders.
Further, the CDC continues to update its guidance for employers, including strategies for reducing COVID transmission risk among employees. These strategies include:
- requiring sick employees to stay home;
- identifying where and how workers may be exposed;
- isolating sick employees; and
- educating employees about safe practices.
The CDC guidance also has specific business continuity strategies to implement, such as appointing a COVID coordinator, assessing feasibility of remote work, and implementing social distancing and sanitizing policies and practices.
Assess your obligations under OSHA
Even if you run your business from an office building and have never given a second thought to OSHA (Occupational Safety and Health Administration) standards, you need to revisit the applicable safety standards. Under both state and federal workplace safety laws, employers have an obligation to provide a workplace free from recognized hazards that may cause death or serious physical harm to employees. COVID is a source of such potential harm and an employer risks OSHA fines and other sanctions if the employer does not take steps consistent with their general duty. Further, OSHA investigations and violations often form the basis for civil negligence and tort liability, increasing liability potential for employers.
Federal OSHA (which is part of the U.S. Department of Labor) has its own set of guidance for COVID, but at a minimum you should consider whether PPE (personal protective equipment) is required and whether respiratory protection regulations apply.
Develop and implement a COVID preparedness and response plan.
When it comes to defending against an employment lawsuit, there is no substitute for having and implementing a written plan. A written plan is not only an effective management strategy – it is also evidence of due care and compliance with the various governmental rules and regulations. Indeed, if your business is doing in-person work, you are required to have such a plan. If you are still remote and are preparing for a transition to in-person work in the future, having a written plan on day one is a wise and prudent management strategy.
OSHA’s workplace preparedness guide offers a good outline for such a plan. Essential steps include the following:
- Specifically identifying sources of potential exposure, including risks of exposure to employees from home and community settings, and then specifically matching the controls necessary to address these sources;
- Updating employee handbooks and issuing interim, COVID-specific policies and guidance to address business management;
- Reviewing and amending any existing sick leave policies to encourage workers to stay home when feeling ill, and to ensure that existing policies are consistent with the latest governmental regulations that protect employees;
- Addressing and planning for any business disruption due to reduced hours, remote work, and supply chain modification;
- To the maximum extent possible, promoting remote work, staggered shifts, or other flexible work arrangements to minimize in-person contact;
Ensure that current polices and practices are free from discrimination.
Having polices in place is all well and good, but does you no favors if they are implemented in a discriminatory manner. Reminder: discrimination remains illegal both under federal and state law. Specifically, new state- and federal-level protections are in place that prohibit adverse employment actions against employees under certain COVID-related circumstances. In short, you cannot discharge, discipline, or otherwise retaliate against someone who is sick, is quarantined, or has contact with sick individuals (like family members). Note that Michigan Executive Order 166 also makes it illegal to retaliate against employees who refuse to violate the law.
What this means in practice is that if you are terminating employees, reducing their hours, or even cutting pay, you should do so only after consulting with your attorney. Even if you are not intentionally discriminating against someone, you may be opening yourself up to an EEOC complaint or civil rights lawsuit by an employee who feels wronged. Remain flexible, and if you do need to reduce staff, salaries, or hours, do so in an open, even-handed manner that is supported by documented and legitimate business reasons.
Also, remain sensitive to individual employees’ situations. Even if you have a legitimate business reason for discharging someone, you may have to defend against allegations of pretext – meaning that the real reason for the adverse action is due to an employee’s status as a member of a protected class. In other words, if you terminate someone who is a single parent, or has a special health condition, or cares for an elderly individual, you may face a charge of discrimination even if your motive was purely financial and not pretextual.
As always, general anti-discrimination laws still apply. Be sure to provide appropriate training and information on appropriate workplace behavior, and follow all applicable privacy guidelines (HIPPA) when dealing with information about employee health status.
Know that you are allowed to institute certain policies to keep employees safe.
Normally, the Americans with Disabilities Act (ADA) precludes inquiring about an employee’s health information. However, special rules apply during the pandemic, and the following actions are permitted (and in fact, are recommended as best-practice):
- Asking employees who call in sick regarding whether they are experiencing COVID symptoms;
- Measuring employees’ temperatures before they are allowed to enter the workplace;
- Mandating employees leave the workplace and stay home if they experience COVID symptoms; and
- Requiring that employees returning to work provide statements or other certifications of being fit for duty (i.e. COVID-free).
Employers may also screen potential employees for COVID symptoms as part of the hiring process, provided they do so in a uniform and non-discriminatory manner. A good rule of thumb is if you ask one applicant to take a temperature test, you better be asking all applicants to do the same.
Take note of expanded FMLA requirements and advise employees of their rights.
Emergency federal legislation expanded FMLA protections to certain workers who are unable to work (including remotely) due to child care. Employers with fewer than 500 employees are regulated, as well as small businesses of 50 employees or less (unless exempted). The expanded protections require the employer to provide their employees with 12 weeks of leave – with the first 10 days uncompensated (unless the employee substitutes their paid leave), and the remainder paid at 2/3 of the normal rate of pay, not to exceed $200 per day or $10,000 in the aggregate.
Finally, remember that Michigan has its own set of laws. Specifically, the Michigan Paid Medical Leave Act may impose additional obligations on employers dealing with employees taking COVID-related leave.
Make sure to account for and pay hourly employees for all the time worked remotely.
Hourly workers are a special challenge during COVID and the shift towards remote work. The Michigan Wage and Hour Division (which investigates and prosecutes wage complaints) is looking into many cases where hourly employees are not being paid for all time worked. Make sure that your time records are accurate and policies about reporting remote hours worked are clear and in writing.
Underreporting or failing to pay for actual time worked is a serious issue that exposes employers to significant fines and civil liability. This is an area where clear, written polices, as well as communication with your employees is a must.
There are a number of other topics that employers must be aware of when navigating the myriad of COVID rules and regulations. Here are some additional topics to discuss with your attorney, management, and other outside consultants like CPAs and insurance contacts:
- Worker’s compensation issues and whether there are any special changes to your insurance policy;
- Unemployment benefit changes; and
- WARN Act obligations if you are an employer with more than 100 employees are are considering mass layoffs or plant closures.
The bottom line is plan ahead. While it is impossible to foresee every problem that will arise, a solid plan and a clear set of workplace policies will go a long way. Whether you have resumed in-person work or are getting ready for such work to resume, sound legal advice and consultation is a solid investment.
Dan Artaev is a former Assistant Attorney General with the State of Michigan in the Labor Division, and in private practice has represented numerous employers with respect to employment law matters, including responding to EEOC and wage and hour complaints. Email Dan at email@example.com or call or text (269) 930-0254 to set up your consultation.
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