Returning to Work in Michigan

On June 1, 2020 Governor Whitmer lifted the State of Michigan’s “stay at home” order permitting additional “non-essential” employers to resume operations. Employers who had suspended operations as a result of various Executive Orders are starting to call furloughed and laid off employees back to work. Of course, many employees, including those deemed essential, have been working throughout the COVID-19 pandemic in Michigan. Work in the COVID-era will undoubtedly be different for many employees and employers. Executive Order 2020-110 lifting the stay at home order can be found here: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-530620--,00.html

Here are some considerations for employees who are back on the job and working with colleagues, customers and clients:

Work Share Unemployment Programs

Some employees are being returned to work at less than their full time work schedules. In these instances, employers may have the ability to submit “Work Share Plan Applications” to the Michigan Unemployment Insurance Agency to allow their employees to both earn wages and continue to collect partial unemployment benefits. Work Share plans permit employees who are working reduced schedules to collect unemployment benefits. These “Work Share plans”, if approved by the State, permit employees to collect unemployment benefits for those hours that they had reduced from their regular work schedule. Work Share plans have numerous requirements including that employers maintain employee fringe benefits, get the approval of any unions involved and not hire new employees into the affected employee groups who are working reduced hours.

An example of a work share plan is the following: If an unemployed worker’s weekly unemployment benefit was $360 when the employee was fully laid off from work, the employee could still receive unemployment benefits if she was returned to work with a 40% reduction in hours. Under the Work Share program, using the example of full benefits of $360 per week, a worker whose hours were reduced by 40% would receive a work share unemployment benefit of $144 ($360 x 40%) in addition to their earned wages. Employees participating in the Work Share program are also be eligible to receive the $600 weekly Federal Pandemic Unemployment Compensation that runs through July 25, 2020.

More information on Work Share programs can be found here: https://www.michigan.gov/leo/0,5863,7-336-78421_97241_89981_90231_90233_99653---,00.html

Safeguards to protect Michigan’s workers from COVID-19

Governor Whitmer issued Executive Order 2020-97 to establish safeguards to protect Michigan’s workers from COVID-19. Executive Order 2020-97 is here: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-529864--,00.html         

These workplace “safeguards” require that employers implement various practices and procedures in the workplace. Michigan employers are required to develop a “COVID-19 preparedness and response plan” that is consistent with guidance from the Occupational Health and Safety Administration.

The employer’s plan must be made available to employees. The employer’s plan must incorporate a number of procedures including:

• designating a supervisor to monitor compliance with the plan;

• providing training on infection control practices and use of personal protection equipment for employees;

• conducting daily entry self-screenings for employees like basic health questionnaires and temperature checks;

• keeping everyone on the worksite at least 6 feet from each other to the maximum extent possible and encouraging remote work;

• requiring face coverings be worn by employees when they cannot maintain 6 feet distance and providing employees with non-medical grade face coverings;

• increasing cleaning and disinfection in the workplace;

• making cleaning supplies available to employees;

• notifying both the local health department and co-workers who had close contact with an infected employee within 24-hours when an employee is identified with a confirmed case of COVID-19;

• encouraging use of hand-sanitizers, limiting travel, and developing a response plan to send employees home and implement temporary closures to allow for deep cleanings when there has been a COVID-19 infection in the workplace; and

• allowing employees with a confirmed or suspected case of COVID-19 to return to work after they are no longer infectious according to CDC guidelines.

Employers cannot hide information relating to confirmed COVID-19 cases at work from employees, contractors or suppliers who have had close contact with the infected individual. The disclosure of such information is important for general health purposes and would appear to override any concerns about medical privacy rights.

MIOSHA has published specific workplace safety guidance for different businesses like construction, manufacturing, offices, retail, health care and restaurants and bars. The MIOSHA safety guidance is found here:  https://www.michigan.gov/leo/0,5863,7-336-100207---,00.html

Paid Leave

If you are not working under a union contract, paid medical leave is still fairly limited in Michigan. Michigan’s Paid Medical Leave Act applies to employers with more than 50 employees. MCL 408.961. Under this Act, eligible employees are entitled to up to 40 hours of paid medical leave. Employees who work fewer than 25 hours per week are not eligible for paid leave under this Act.

The Families 1^st Coronavirus Response Act provides for paid sick leave to employees impacted by the COVID-19 virus. 29 CFR § 826.20. This Act is effective April 1, 2020 through December 31, 2020 and applies to public employers and private employers with under 500 employees. In general, the Act requires that covered employers must pay employees two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is quarantined pursuant to advice from a health care provider or sick or experiencing symptoms from COVID-19. This Act also provides employees two weeks (up to 80 hours) of paid leave because of a need to care for an individual subject to quarantine or to care for a child whose school or daycare has been closed due to a government order.

Michigan Workers’ Compensation Benefits

Employees who believe that they contracted COVID-19 at work may be able to receive benefits under the Michigan Workers’ Disability Compensation Act. Workers’ compensation is designed to provide benefits, including wage loss and medical benefits, to workers whose injuries “arise out of and in the course of their employment.”

“First Response Employees” (i.e. health care workers, police, fire, and medical responders) who have been diagnosed with a COVID-19 infection are automatically considered to have a personal injury that arises out of employment and that will entitle them to receive workers’ compensation benefits.

Other employees, who are not first responders, may also be entitled to workers’ compensation benefits if the employee can show that the COVID-19 infection was contracted at work. For instance, if a meat-packing employee is diagnosed with COVID-19 and can show that she contracted the illness after working at the meat packing plant with other infected employees, the employee may have a valid claim for workers’ compensation benefits like wage loss, medical and rehabilitation benefits.

The Michigan Workers’ Disability Compensation Agency COVID-19 FAQ’s can be found here: https://www.michigan.gov/leo/0,5863,7-336-78421_95508---,00.html

Anti-Discrimination Employment Laws

Employees who are concerned about returning to work due to health concerns and potential exposure to the COVID-19 virus may have options. An employee with an existing disability that exposes that employee to an increased risk of harm to a COVID-19 exposure may seek reasonable accommodations under the Americans with Disabilities Act. Reasonable accommodations vary depending on the nature of the job and the disability but could include remote work, additional equipment or modifications to the work environment to separate the employee from others or even additional leave time.

The coronavirus has impacted certain age and race groups more severely. The CDC says that older adults, 65 years and older, are at higher risk for severe illness due to COVID-19. Some statistics have shown that persons over age 50 are susceptible to the most severe complications from the virus. COVID-19 appears to be affecting minority communities especially hard across the country. According to a University of Michigan April 9, 2020 publication, “African Americans account for 33% of COVID-19 cases and 40% of the deaths, according to state data, though they make up 14% of the state’s population.”

Employers must ensure employees are not subject to workplace pandemic-related harassment. Employers should reduce the chance of harassment by explicitly communicating to the workforce that the fear of the COVID-19 pandemic should not be misdirected against individuals because they belong to a protected class like national origin, age or race.

In addition, an employer cannot discriminate against employees due to national origin, age, race or other protected categories and claim that the coronavirus justifies the discriminatory treatment. For instance, an employer cannot state it is laying off all persons over age 55 because it wants to protect older workers from the potential risks posed by the coronavirus.

Know your Rights

As you return to the workplace, it is important that you understand your rights and exercise common sense. If you have questions about workplace safety issues, the MIOSHA has good publications on its website addressing basic COVID-19 safety protocols for various industries. Employers and employees with questions regarding workplace safety and health may contact the Michigan Occupational Safety and Health Administration (MIOSHA) using the new hotline at 855-SAFEC19 (855-723-3219). To report health and safety concerns in the workplace, employees can also go to http://www.michigan.gov/MIOSHAcomplaint

It is important to recognize that even if some of the new protocols cause you an inconvenience or discomfort, you may be sharing your work space with co-workers who have underlying health conditions (or that live with their grandparents or someone else that is sick at home) and who therefore have a high risk of severe illness if they contract COVID-19.

The above is a general summary only and not intended as legal advice. If you have specific workplace questions, feel free to contact the attorneys at Kalniz, Iorio & Reardon.