Without a doubt, employers across the globe are contending with myriad issues to keep their employees safe and employed as businesses start to reopen, and Michigan is no exception. In this Insight we provide an update on current requirements, which we expect to persist and expand as sectors of the economy reopen, consistent with Governor Whitmer’s executive orders (EOs). We also discuss benefits for employees who cannot work due to COVID-19, legal challenges to Governor Whitmer’s emergency powers, and COVID-19’s impact on courts in Michigan.
Daily Employee Screening is Becoming Ubiquitous
Under Governor Whitmer’s current executive orders, food sellers, pharmacies, and construction employers are required to conduct daily employee screening for fevers and other COVID-19 symptoms, recent travel, and contact with persons who have tested positive for COVID-19, see EO 2020-70 and EO 2020-71. All other businesses currently operating are required to “adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.” While EO 2020-70 seemingly gives other essential employers (outside of food sellers, pharmacies and construction employers) prerogative to adopt screening policies as they see fit, some Michigan counties have filled the gap. For example, Wayne County requires employers to conduct daily screening and temperature checks (as under the EO, a touchless thermometer is strongly recommended in lieu of verbal confirmation). Oakland County, Washtenaw County, and Ingham County have likewise adopted similar health orders requiring daily screening and temperature checks. In each case, an affirmative response to a screening question requires the employee to stay out of the workplace for the periods of time stated in the orders.
To address these varied screening requirements, many businesses employing critical infrastructure workers across Michigan have implemented statewide daily screening procedures based on the counties’ screening mandates, which are more restrictive than Governor Whitmer’s orders. Rather than directing their managers to ask the screening questions each day to every employee, many businesses post the questions at every entrance to their business or send the screening questions to their critical infrastructure workers through an automated, daily email. In these examples, employers direct employees to immediately contact specified personnel if they answer “yes” to any of the questions. As more industries come back on-line, we anticipate that all businesses performing in-person activities will be required to comply with some form of daily screening requirements.
Face Coverings Mandatory Everywhere (at Least if You’re inside an Enclosed Public Space)
On April 24, 2020, Governor Whitmer issued EO 2020-70, which, among other things, requires all individuals capable of medically tolerating a face covering over their nose and mouth to wear one whenever in an enclosed public space. This requirement went into effect on April 27, 2020 and is currently set to expire on May 15, 2020. As more industries return to work, however, we expect the face covering requirements to persist.
In addition, the EO requires all businesses and operations whose workers perform in-person work to, at a minimum, provide non-medical grade face covering to their workers. Examples of non-medical face coverings include homemade masks, scarves, bandanas, and handkerchiefs. The EO recognized that N95 and surgical masks are in short supply and, thus, should be reserved for healthcare professional, first responders, and other critical workers who interact with the public.
The face covering provision also extends the protections of the Elliott-Larsen Civil Rights Act (ELCRA) “and any other protections against discrimination in Michigan law” to persons who wear a face covering in compliance with the order. Whether the governor has the authority to effectively amend the ELCRA or any other statutory protection against discrimination by executive order to create a new protected class remains to be seen. But even if the provision is deemed unconstitutional, a business that takes adverse action against a person for complying with the face covering requirement could still face a civil suit for violation of Michigan public policy.
Enhanced Retail Requirements
Stores currently operating in Michigan are subject to a number of restrictions in order to mitigate against the spread of COVID-19. As Michigan begins to open up, we expect restrictions to persist, and to apply to all retailers as stores that do not sell essential goods come back on-line. Currently, restrictions on food-selling establishments and pharmacies include the following, see EO 2020-71:
- Every person who enters a store who can medically tolerate a face covering must wear one;
- Stores must provide at least two hours of dedicated shopping time for vulnerable populations;
- Stores must provide access to handwashing facilities;
- Stores must require checkout personnel to wear a face covering;
- Employees must be permitted breaks to wash their hands as needed;
- Use of best efforts to ensure checkout personnel disinfect hands between orders;
- Use of best efforts to provide disinfecting wipes at registers and access points and other appropriate locations;
- Maintain social distancing of at least six feet (which may include one-way traffic, temporary barriers, and demarcating queuing distances);
- No free samples;
- No prepared food stations or salad bars;
- Adopt procedures to meet environmental cleaning guidelines established by the CDC;
- Prohibit sick employees from coming to work and send sick employees home;
- Accommodate employees who fall within a vulnerable population (lower-exposure assignments or option for unpaid leave);
- Encourage cash transactions at self-checkout;
- Develop and implement daily employee screening (temperature checks if touchless thermometer is available, and if not, affirmation of no fever, absence of other COVID-19 symptoms, verification of recent travel, verification of close contact with someone with a COVID-19 diagnosis), see the Order for specific requirements if an employee fails the screening;
- Notify food vendors and other employees within 12 hours of positive COVID-19 test result of an employee without revealing the personal health-related information of any employee.
The requirements above will remain in force at least through May 30, 2020.
Retailers currently open to the public must also abide by decreased limits on store occupancy per EO 2020-70—if the store is less than 50,000 square feet, occupancy is limited to 25% of the limit established by the fire marshal. If the store is greater than 50,000 square feet, then occupancy is limited to four people per 1,000 square feet. In addition, stores must establish lines for queueing outside that enable patrons to stand at least six feet apart.
Businesses are Required to have COVID-19 Preparedness and Response Plans
As COVID-19 has surged across the country, so has the number of COVID-19-related OSHA complaints. Governor Whitmer’s executive orders defining the conditions under which businesses are permitted to operate have consistently included that businesses must develop COVID-19 preparedness and response plans. See EO 2020-42, EO 2020-70. This is no small undertaking, and failure to comply places employers at significant risk. Employers that do not heed this aspect of the governor’s orders face not only the risk of failing to comply with the orders, but also the attendant risk of safety complaints and other potential claims.
Initially, employers should conduct job hazard assessments relating to COVID-19 to determine where and how employees may be exposed. This will include where employees are working, how close they are to other employees, whether they can use face coverings to limit exposure (or whether face coverings create another type of hazard), how to limit exposure in the workplace, and how the employer will be able to maintain other mandatory practices (providing clean bathrooms, water, breaks, etc.). After conducting the job hazard assessment, an employer should determine what engineering controls (physical barriers, ventilation, drive through services, etc.) it can add to its facility, what policies and procedures it can implement as administrative controls (screening policies, one-way traffic and signage, staggered shift starts, face covering policies, restricting building access, training, etc.), and what other personal protective equipment (PPE) it can provide its employees to reduce exposure.
The OSHA guidance referenced in Governor Whitmer’s orders describes four levels of risk—Lower Risk (Caution), Medium, High, and Very High—and describes engineering controls, administrative controls, and PPE for each level of risk. However, employers should be wary of limiting themselves solely to adoption of the controls specified in guidance, and should utilize all CDC-listed engineering controls, administrative controls, and PPE that they feasibly can to limit exposure. In the event of an investigation, OSHA will no doubt review whether the employer implemented engineering controls and adopted and enforced administrative controls sufficient to mitigate the risk of exposure.
Employers also need to develop a manner in which to contact trace after an exposure incident, including what documentation will be reviewed, what questions will be asked of the exposed employee, and how notice will be provided to other employees. Additionally, employers need to develop cleaning and disinfecting protocols including but not limited to closing the facility until cleaning is possible (and after a 24-hour waiting period). Employers should also develop other health screening protocols and maintain travel restrictions.
Given the unique circumstances of each employment setting, preparing the required preparedness and response plan is a fact-specific undertaking that will be unique to each employer and the jobs performed by its employees.
Schools Closed Forever?
With Executive Orders 2020-35 and 2020-65, Governor Whitmer suspended in-person classroom learning for the remainder of the 2019-2020 school year for K-12 education. One effect of these closures is that a significant portion of the workforce must remain at home to care for school-aged children. Impacted employees may be eligible for a protected leave of absence, a paid leave program, or unemployment benefits.
Under the federal Families First Coronavirus Response Act, private employers with under 500 employees may need to provide emergency paid sick leave and unpaid or paid family leave to such impacted employees. To qualify, employees requesting leave must provide information confirming the school closure and that, “no other suitable person will be caring for the child” during the leave period. Similarly, Michigan’s Paid Medical Leave Act (PMLA) requires employers to provide paid medical leave benefits to employees who must miss work to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency.
Likewise, impacted employees are entitled to unemployment benefits pursuant to EO 2020-57. Under the EO, “[a]n individual must be considered to have left work involuntarily” or “deemed laid off” if they cannot work because of “a family care responsibility as a result of a government directive.”
Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, an individual may be eligible for expanded unemployment benefits if they self-certify that they are available for work, but are unable to work because they are the primary caregiver for a child whose school is closed due to COVID-19, and whose care is required to allow the individual to work. The CARES Act also created the Pandemic Unemployment Assistance (PUA) program, which provides benefits to individuals who are not eligible for regular unemployment compensation and must care for a child whose school has closed. PUA benefits are not available to employees with the right to telework with pay or who have a right to paid leave benefits.
Protections for Workers Who Stay Home, Stay Safe Because of COVID-19
On April 3, 2020, Governor Whitmer issued an EO 2020-36, declaring it to be the public policy of Michigan that an employer shall not discharge, discipline, or retaliate against an employee who stays home when they are at risk of infecting others with COVID-19. Covered employees fall into two groups: (1) those who test positive for COVID-19 or who display one or more of the principal symptoms of the virus (fever, atypical cough, or atypical shortness of breath); and (2) persons who have had close contact with an individual who tests positive for COVID-19 or who displays one or more of the principal symptoms of the virus. Employees in the first group must remain at home until three days after their symptoms have resolved and seven days after their symptoms first appeared or they were swabbed for the test that yielded the positive result. Employees in the second group must remain at home until 14 days have passed since their last close contact with the sick or symptomatic individual or the symptomatic individual receives a negative COVID-19 test.
The order does not apply to health care professionals or workers at a health care facility, first responders, child protective service employees, workers at childcare institutions, or workers at correctional facilities.
Employers must treat covered employees absent from work as if they are taking medical leave under the PMLA. If the employee has no paid leave available, the leave may be unpaid. Employers may debit an employee’s accrued leave for time missed, but the length of the leave may not be limited to the amount of accrued leave and must extend—whether paid or unpaid—until the employee may return to work under the order. The order does not prohibit an employer from discharging or disciplining an employee who refuses to return to work when they are able to, or if the employee consents to the discharge or discipline, or for any other lawful reason.
Although the order expressly states it does not create a private right of action against an employer for violating the order, the director of the Department of Labor and Economic Opportunity has the authority to enforce the order in the same manner and to the same extent as the director enforces the PMLA.
Expansion of Unemployment
In response to the COVID-19 crisis, the federal CARES Act expanded unemployment compensation eligibility in Michigan. Self-employed workers, gig workers, 1099 workers, low-wage earners and employees whose unemployment benefits have run out are now eligible to apply for and receive an additional $600 per week in addition to their (maximum) $362 per week unemployment compensation benefit through the state of Michigan. Consistent with Michigan’s typical practices, individuals who are receiving remuneration through paid leave, who telework or who quit their job without good cause are not eligible to receive these extended benefits. The combined eligibility and compensation period is now 39 weeks, and all claims made by eligible and qualifying unemployed (or reduced pay) employees will apparently be honored beyond the previously established 28-day backdate. In short, in Michigan, if you qualify for unemployment benefits, no matter the timing, you will receive them.
Employers need to be mindful that employees can qualify to receive unemployment benefits as described above because of COVID-19 if the employer reduces an employee’s hours but keeps the employee employed on a part-time basis. However, any employer who is forced to cease, suspend or stop operations due to COVID-19 or as a result of one of the governor’s executive orders (which provide for unemployment compensation benefits for all employees who are sick, quarantined, immunocompromised, or have an unanticipated family care responsibility all related to COVID-19) will not have its UI tax rate increased because of unemployment claims made against the employer.
The state of Michigan is strongly recommending that employees should not be designated as “terminated” should the employer need to reduce or cease its operations. Rather, employers should designate the employees as on a “temporary leave” or “indefinite layoff” with an expected return-to-work date not to exceed 120 days from the day of the layoff. In this manner, the affected workers may more easily qualify for additional federal benefits, like those provided by the federal CARES Act.
In a continued effort to prevent mass layoffs and job terminations, Michigan expanded its Workshare Program. The Workshare Program incentivizes employers to keep their workforce, and instead reduce their hours to save on costs. In turn, employees are able to collect unemployment benefits for the percentage of the reduced hours of work and pay. EO 2020-57 expanded the Workshare Program eligibility requirements to ensure that most employers now qualify. Most notably, the acceptable range of reduced employee hours is expanded from 15%-45% to 10%-60% and employers are not required to: have paid wages for 12 previous quarters; have a previous history of layoffs; be current on unemployment taxes; or have a positive balance in their unemployment tax account.
When considering whether to participate in the Workshare Program, employers should be mindful that the program requires employers to maintain the fringe benefits of participating employees and obtain, if necessary, approval from collective bargaining representatives. The Workshare Program does not apply to employees who have not earned a sufficient amount of wages in order to establish an unemployment claim, or to temporary, seasonal, or intermittent employees.
Employers interested in creating a Workshare plan may file an application online though the Michigan Web Account manager (MiWAM).
Futures for Frontliners
On April 29, 2020, Governor Whitmer announced the “Futures for Frontliners” program, which will provide tuition-free post-secondary education opportunities, including college and technical certificates, for COVID-19 essential workers who do not have a college degree. Employees such as hospital and nursing home workers, grocery store clerks, childcare providers, PPE manufacturing workers, public safety and sanitation workers, and those delivering household supplies are eligible for the program.
Specific details will be announced at a later date, but the press release notes that the program is the first of its kind in the country and “was inspired by the federal government’s support of soldiers returning from World War II by providing educational opportunities.” The program is expected to help the administration reach its goal of having 60% of working age adults obtain a post-secondary degree or certificate by 2030.
Legal Challenges to the Governor’s Emergency Powers
In Martinko v. Whitmer (04/29/20), the Michigan Court of Claims denied a motion by five Michigan residents to enjoin enforcement of Michigan’s Stay Home, Stay Safe shelter-in-place order. The court rejected plaintiffs’ argument that various provisions of the order violated their constitutional rights to procedural and substantive due process, finding that the governor has broad authority to restrict freedom of movement and restrain commerce when acting to protect public health. The court also rejected plaintiffs’ challenge to the constitutionality of the Emergency Management Act of 1976—one of two statutes the governor has relied on when issuing emergency executive orders—finding that because the EMA contains sufficient guidance on how the governor is to execute the law to further the Legislature’s policy, it is not an unlawful delegation of legislative authority.
On May 6, 2020, the Michigan Legislature filed suit in the Michigan Court of Claims challenging Governor Whitmer’s authority to exercise emergency powers. We will keep a close eye on this case and how its outcome could impact businesses’ plans to reopen.
Impact on Courts in Michigan
On March 23, 2020, the Michigan Supreme Court issued Administrative Order (No. 2020-3), which extends the case initiation and responsive pleading filing deadline in civil and probate matters during Michigan’s state of emergency. This order does not suspend or toll any time period that elapses before the commencement of an action or proceeding. Likewise, on March 26, 2020, the Michigan Supreme Court issued Administrative Order (No. 2020-4) suspending filing deadlines in the Michigan Supreme Court and Court of Appeals as of March 24, 2020. The order tolls deadlines until the end of any EO that suspends activities that are not necessary to sustain or protect life. Further, on April 23, 2020, the court issued Administrative Order (No. 2020-10), requiring trial courts to suspend all jury trials until June 22, 2020. In the meantime, the State Court Administrative Office is exploring the possibility of conducting jury trials remotely.
The United States District Court of Eastern Michigan has likewise suspended all grand jury proceedings until further order and postponed all matters scheduled for in-person appearances. The Western District of Michigan has ordered all scheduled hearings to be done via audio or video conference, and only if deemed necessary, in person. The Western District of Michigan anticipates opening its facilities to the public on May 18, 2020.
Saving the Best for Last – Construction, Real Estate, and Outdoor Work to Resume May 7, 2020
Legal challenges and politics aside, this week Michigan takes another step toward recovery. As the second step of her MI Safe Start plan, Governor Whitmer issued the third revision of her shelter-in-place EO 2020-70 last Friday, allowing construction, real estate activities, and work “traditionally and primarily performed outdoors” to resume on May 7, 2020. The order allows plumbers, electricians, HVAC technicians, and other building trades to return to work as well as real estate agents, appraisers, brokers, inspectors, surveyors, and register of deeds.
Enhanced social-distancing rules will apply to all outdoor and construction work and require businesses and operations to designate a site-specific supervisor to monitor and oversee COVID-19 control strategies. As noted above, workers and visitors entering the worksite must be screened daily for symptoms and exposure to COVID-19 to include temperature screening where possible. Where workers cannot consistently maintain six feet of separation from each other, they must wear face shields or masks. Other requirements include the creation of designated entry points or using stickers or other indicators to ensure all workers are screened daily, the identification and control of choke points where workers congregate, the provision of sufficient hand-washing or sanitizing stations, and the restriction of unnecessary movement between project sites. Real-estate showings, inspections, appraisals, and photography or videography must be by appointment only and limited to no more than four persons on the premises. In-person open houses are not allowed.
The order also allows persons who manufacture goods that support workplace modifications to prevent the spread of COVID-19 to return to work.
