covid Archives - ARTAEV AT LAW PLLC

2020 is finally over, yet we are still in the middle of a pandemic, continued restrictions, ever-changing mandates, and regulations. So what’s new for business owners? Restaurants, entertainment venues, and other businesses are slowly seeing a transition to increased capacity. Vaccines are rolling out. There is new interim guidance for athletics from the MDHHS to review if you are in the sports business. Remember that the the federal Families First Coronavirus Response Act (“FFCRA”) expired on December 31, 2020 and has not been extended or renewed. Recall that the FFCRA required paid medical leave, paid child care leave, and offered extended FMLA benefits – including to employees who would not normally qualify for FMLA. While these benefits are no longer mandatory, employers who continue to offer paid sick time for COVID-related reasons, as well as extended FMLA benefits will continue to be eligible for a tax credit to compensate them for benefits offered through March 31, 2021.

From a Michigan law perspective, make sure that you are familiar with the the Michigan COVID-19 Response and Reopening Liability Act, which gives retroactive immunity from tort liability to businesses that have been following the various COVID-19 laws and regulations. Additionally, know your obligations under the new COVID-19 Employment Rights Act, MCL 419.401 et seq., which formally protects employees from COVID-related retaliation and imposes a mandatory quarantine period for employees of at least 10 days from the onset of symptoms, even if they test negative.

I am continuing to update my guide to give business owners some direction in this time of uncertainty. I generally recommend that business owners stay the course and continue doing what they have been doing with respect to COVID safety and employee treatment. 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 previously enacted through executive orders. If you are unsure about your current protocols 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. The new Michigan anti-retaliation law imposes retroactive liability to March 1, 2020, and the tort liability shield only applies to businesses who follow current government regulations.

Make no mistake, plaintiffs’ lawyers are already filing a number of COVID-related lawsuits against employers. 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.

Pay special attention to the latest MDHHS guidelines for face coverings and social distancing. These regulations expand the capacity restrictions to certain business activities, such as retail stores, libraries, museums, gyms, other recreational sports activities, and others. Specific face covering rules are in effect for all nonresidential gatherings, businesses, and offices. Restaurants are subject to revised and expanded regulations, including limits of six people to a table, table spacing at least six feet apart, and limiting the total number of patrons to 50% of capacity. The MDHHS Epidemic Orders page also contains helpful FAQs, summaries, and infographics to distill the essentials for easy implementation.

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.) The Michigan COVID-19 Employment Rights Act prohibits adverse employment actions against employees who do not report for work due to COVID-19 symptoms, report violations, or otherwise opposes an employer who is violating 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 a 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.

The Michigan COVID-19 Employment Rights Act expressly prohibits employees who test positive for COVID-19 or who experience principal symptoms from coming to work. Likewise, an employer may not terminate an employee on grounds that they are unable to work due to COVID. Additionally, federal emergency legislation continues to require two weeks of paid sick leave for employees who have COVID-19 or are caring for those with the illness.

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.

What else?

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 dan@artaevatlaw.com or call or text (269) 930-0254 to set up your consultation.

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.

You may wish to give mediation a second look. If you are business owner involved in pending business litigation, you are likely frustrated with the progress – or rather the lack of progress – in your case. Whether as a plaintiff looking for a resolution of your grievance or a defendant eager for vindication, it is frustrating when the courts keep pushing back deadlines and hearings, with no end in sight. When Michigan shut down back in March 2020, the Michigan Supreme Court directed (and rightfully so) that criminal cases be prioritized. Civil matters – and especially business disputes – got pushed to the back of the docket. Now, as many of the courts have resumed normal (albeit remote) operations, they are playing catch-up. This is especially so in busy circuits like Wayne and Oakland.

Business owners do not make money in litigation. Lawsuits are expensive in terms of both time and money – there is little doubt that you are not making the best use of your time if you are stuck in an 8-hour deposition, rather than out there selling your product. This is why mediation is always a good idea, even in the best of times, but during COVID, it is the best possible solution to a number of complicated problems facing business owners attempting to resolve their disputes in the courts.

Even if you have already mediated (unsuccessfully), you may consider another attempt. There is no limit to how many times you can try to facilitate a case. Some judges even order the parties to mediate multiple times during the process at different stages of the case. The court rule that governs mediation, MCR 2.411, is very flexible and allows the parties to stipulate to a mediator of their choosing, whether an attorney, a former judge, or even a respected neighbor in the community. COVID has brought about a sea change for businesses across the United States and there is little doubt that the primary facts, interests, and goals, are different now than they may have been pre-COVID. Accordingly, you may want to try again and possibly with a different mediator.

Effective mediation can work wonders, even with the most stubborn parties. I once represented a former employee, whose employer owed her at least $60,000 in back wages. The employer was a start-up entrepreneur in the fitness business, who was big on making promises, but not so big on delivering them. In other words, he promised to pay many times, but at the end of the day, was either unable or unwilling to write a check for services rendered. The employer was also very aggressive and responded to a rather simple breach of contract complaint with counter-allegations of embezzlement and fraud that were unsupported by any evidence whatsoever. The court strongly suggested mediation, but I had no hopes that this case was going to end up anywhere other than trial. Much to my surprise, our mediator was able to craft a solution that settled the case. Not only that, but the mediator’s resolution made both sides feel like they won. That to me is the hallmark of a good mediation – where both sides feel like they are better off than they were prior to mediation. Better yet, the employer could now devote his time and money to his business instead of the lawsuit, and the former employee could spend her time working elsewhere and making money, instead of paying attorneys and going to hearings.

Now is a time like no other to engage a mediator to resolve that business case. The advantages are numerous:

Many judges will encourage parties to settle anyway, and even before COVID less than 1% of all business cases were resolved through trial.
The monetary cost of taking a case to trial has increased exponentially, as disputes have been more complex and the costs of discovery has skyrocketed in large part due to technology.
The time opportunity cost of taking a case to trial has also increased exponentially, as discovery has grown more complex and requires more time input from business owners.
The opportunity cost of taking a case to trial is also unpredictable and may largely depend on the forum and the particular judge’s preferences. I once was involved in a relatively straight-forward contract dispute that was pending for over a year, the judge refused to rule on any motions or set the case for trial, and ordered mediation at least 3 times. The parties eventually gave up and settled after the third mediation.
In the same vein, the parties can mutually decide on a mediator that fits their needs, whereas in litigation, the parties do not chose their judge.
If you filed pre-COVID litigation, consider whether mediation (even if you have previously tried mediation) can be a way out of the slowed-down docket across the state. After all, the facts, interests, and goals of the parties may look quite different than they looked back in February 2020.

Also, online mediation through videoconferencing (like Zoom) is viable and surprisingly effective option. Consider the following advantages:

No need for parties or attorneys to travel, allowing for convenience of all.
Greater flexibility means potentially lower costs and quicker resolution.
Potentially lower mediator fees.
Option to have multiple days or extended sessions, as may be needed.
Increased scheduling flexibility for all parties.
Technological advances such as separate virtual conference rooms, screensharing, text chat, and online whiteboards make it easy for the parties to share information with each other and the mediator.

Artaev at Law offers mediation services as well as representation in alternative dispute resolution proceedings. Contact Dan at dan@artaevatlaw.com or by call or text at 269-930-0254 to schedule your mediation or to secure representation.