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COVID-19

Resources

Developments and resources for the ongoing impact of the coronavirus pandemic on employees and small businesses.

There are many significant and developing changes in the law that effect employers and employees alike. We will be working to provide updates and resources here as the situation unfolds. The information here should not be considered a substitute for legal advice. Each situation is unique and requires thorough analysis. If you have questions about your rights in these uncertain times, contact us for more information.

Expanded
Unemployment
Paid Family
and Sick Leave
Small Business
Resources
 
Pause to Save
Lives Order
Links and
Resources
Contact
Us
Workplace
Safety

Pause to Save Lives Order

 

On Saturday, November 14, 2020, 7,072 new COVID cases were reported in Michigan, bringing the total number of people in the state infected by the disease since the start of the pandemic to over 250,000. On Sunday, November 15, 2020, the Michigan Department of Health and Human Services announced new measures designed to reduce the spread of COVID-19 in Michigan. These measures differ from the executive orders issued by Governor Whitmer earlier in the year in that they are being enacted under the Epidemic Emergency Order Provisions found within the Public Health Code (MCL 333.2253).

 

The order takes effect at midnight on Wednesday, November 18, 2020, and will last for a total of three weeks, through December 9, 2020. It is being billed as the “Pause to Save Lives.” Some of the key provisions include the following:

 

  • All work that can be done remotely from home, must be done remotely;

  • Grades 9-12, Colleges, and Universities are prohibited from conducting in-person learning;

  • Restaurants and bars are closed for in-person dining;

  • Organized sports (except college and professional sports without spectators) are prohibited;

  • Theaters, movie theaters, stadiums, arenas, bowling centers, ice rinks, indoor water parks, bingo halls, casinos, and arcades are closed during the “Pause to Save Lives.”

 

The order sets forth additional specific regulations as follows:

 

Residential Gatherings:
  • Indoor gatherings limited to 10 people from no more than 2 households;

  • Outdoor gatherings limited to 25 people from no more than 3 households.

Non-Residential Gatherings:
  • Indoor gatherings generally prohibited;

  • Outdoor Gatherings at a venue without fixed seating: limited to 25 people, with a maximum of 20 people per 1,000 square feet;

  • Outdoor gatherings at a venue with fixed seating: limited to 20 people, with a maximum attendance of 20% of seating capacity.

Retail Stores, Libraries, Museums:
  • Limited to 30% of total capacity in retail stores, libraries, museums;

  • Retail stores must stablish lines to regulate entry and checkout with markings for patrons to stand at least 6 feet apart

Exercise Facilities:
  • 25% of total occupancy limits;

  • 12 feet of distance between occupied workout station;

  • No group fitness activities or classes;

  • Must maintain accurate records, including date and time of entry, names of patrons, and contact information for the purpose of contact tracing.

Waiting Rooms:
  • Prohibited unless there is an established system to ensure persons not of the same household maintain 6 feet distance;

  • To the extent possible, this system must include a policy that patients wait in their cars until called.

Public Pools:
  • Limited to 25% of bather capacity limits;

 

Personal Care Services (Barber Shops, Salons, Etc.)
  • Only permitted to the extent that services do not involve the removal of face masks

  • All services must be provided by appointment

  • Gatherings in waiting areas are prohibited

  • Must maintain accurate records, including date and time of entry, names of patrons, and contact information for the purpose of contact tracing.

 

Schools, Colleges, and Universities:
  • In-person instruction for grades 9 through 12, and at colleges and universities are prohibited, except for special education services and English Language Learners;

  • In person instruction for grades K through 8 are permitted, subject to local health department and school district decisions on remote learning.

  • Gatherings are permitted for the purpose of provided services to students in need (i.e. food assistance, access to internet connectivity, physical and mental health care services, and child care)

 

Organized Sports
  • Generally prohibited, unless all participants, teams, and venues comply with an enhanced testing regimen as specified by the MDHHS.

  • Spectators are prohibited

Face Masks
  • All persons participating in gatherings are required to wear a face mask.

  • Businesses must require employees and patrons to wear masks and deny entry to persons refusing to do so.

  • Child-care organizations must require face masks as follows:

    • Children 2 and older: When on a bus or transportation provided by the child-care organizations;

    • Children 4 and older: When in indoor hallways and common areas;

    • Children 5 and up: In all indoor settings.

  • Exceptions:

    • Children younger than 5 outside of a child-care setting;

    • Individuals who cannot medically tolerate a face mask;

    • Individuals who are eating or drinking while seated;

    • Exercising outdoors and able to consistently maintain 6 feet of distance;

    • Swimming;

    • Receiving a medical service for which removal is necessary;

    • Temporary removal for identification purposes;

    • Communicating with someone who is deaf or hard of hearing;

    • Engaged in a public safety role where wearing a face mask would seriously interfere in performance of duties;

    • Polling places;

    • Religious services;

    • Giving a speech for broadcast, provided that the audience is at least 6 feet away from the speaker.

 

As always, if you need assistance navigating these orders for yourself or small business, contact us for how we can help.

 
 

Expanded

Unemployment

Benefits

CARES Act

On March 30, 2020, Governor Whitmer signed an agreement between Michigan and the US Department of Labor implementing provisions of the CARES act. The act significantly expands the benefits available to workers who have lost income because of the coronavirus pandemic. 

The agreement increases unemployment benefits by an additional $600.00 per week for up to four months. This benefit is now available even to those who would not otherwise qualify for unemployment compensation, such as self-employed individuals, independent contractors, low-wage workers, and workers with a limited work history. 

Unemployment Compensation under the act is administered under three different provisions:

Federal Pandemic Unemployment Compensation (PUC) Program

Section 2104 of the CARES Act

Who is eligible?

Individuals that are otherwise entitled to unemployment benefits under state or federal law.

What benefit is provided?

A flat $600.00 per week in unemployment benefits beginning the first date of unemployment, or the date the State signed an agreement with the Department of Labor (March 30, 2020), whichever is later. Note: The Governor has indicated that these funds may take some time to become available, however the language of the CARES Act provides for payments be made retroactively

When is the benefit available?

From March 30, 2020 until July 31, 2020.

Federal Pandemic Unemployment Assistance Program (PUA)

Section 2102 of the CARES Act

Who is eligible?

Individuals who are not entitled to unemployment benefits under state or federal law, that have lost income for a qualifying reason related to the COVID-19 pandemic. This includes self-employed individuals, low wage earners, and those with insufficient work history. 

Qualifying reasons under the program include the following:

  • The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

  • A member of the individual’s household has been diagnosed with COVID-19;

  • The individual is providing care for a family member or household member who has been diagnosed with COVID-19;

  • The individual is the primary caregiver for a child or other person in the household who is unable to attend school or another facility that has been closed as a direct result of COVID-19 and such school or facility care is required for the individual to work;

  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19;

  • The individual is unable to reach the place of employment because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns;

  • The individual was scheduled to begin employment and does not have a job or is unable to reach the job as a direct result of COVID-19;

  • The individual has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19;

  • The individual has been forced to quit a job as a direct result of COVID-19;

  • The individual’s place of employment is closed as a direct result of COVID-19.

Benefits are not available to individuals who have the ability to telework with pay, or who are receiving paid sick leave or other paid leave benefits.

What benefit is provided?

Up to 39 weeks of the minimum weekly benefit afforded by the Stafford Act Disaster Unemployment Compensation program, plus the $600.00 benefit afforded under the PUC program (From March 27, 2020 to July 31, 2020).

When is the benefit available?

January 27, 2020 through December 31, 2020.

Federal Emergency Unemployment Compensation (PEUC) Program

Section 2107 of the CARES Act

Who is eligible?

Individuals who are able and available to work and have exhausted all rights to regular compensation afforded by State or Federal law.

 

What is the benefit?

An additional 13 weeks of state unemployment benefits, plus the benefits afforded under the PUC program to the extent they are applicable.

When is the benefit available?

Through December 31, 2020.

 

MI Executive Order 2020-57

On April 22, 2020, Governor Whitmer signed Executive Order 2020-57, temporarily expanding unemployment benefits for Michigan workers effected by the COVID-19 pandemic. The order replaces Executive Orders 2020-10 and 2020-24 and is retroactive to March 16, 2020. 

 

This order expands the definitions of who is entitled to benefits under unemployment. Pursuant to this order, state unemployment benefits are made available for those who are unable to work because of one of the following:

  1. Self-isolation or self quarantine in response to elevated risk from COVID-19 due to being immuno-comprimised;

  2. Displaying at least one of the principal symptoms of COVID-19 (i.e. a fever, atypical cough, or atypical shortness of breath);

  3. Having contact in the last 14 days of someone with a confirmed COVID-19 diagnosis;

  4. The need to care for someone with a confirmed diagnosis of COVID-19;

  5. Having a family care responsibility as a result of a government directive (i.e. school closings)

The order extends the availability of State Unemployment benefits from 20 weeks to 26 weeks, and extends the deadline to apply for benefits from 14 to 28 days from the last date of work. Additionally, the order temporarily suspends the requirement to certify that you are actively looking for work in order to be considered eligible for unemployment benefits. 

This order also provides benefits for employers. Unemployment benefits paid out under these provisions are not chargeable to the employer. Additionally, the order expands eligibility to the Shared-Work program to allow for employers to avoid layoffs where there is a reduction in available hours.

 

Executive Order 2020-57 remains in effect during the declared states of emergency and disaster.

It should be noted that the expansion of unemployment benefits does not limit those who would otherwise be eligible under state law. Employees who are laid off due to a reduction of business are still eligible for unemployment, even though the business may still be operation or they may not meet any of the criteria under Executive Order 2020-24 or the CARES Act. 

If you have questions about how these provisions may effect you or your small business, please contact us.

Paid Family

and Sick

Leave

Families First Coronavirus Response Act

On March 16, 2020, the Families First Cornonavirus Response Act was signed into law. Importantly, this act provides for two new types of paid leave as a result of the COVID-19 virus pandemic. These provisions go into effect on April 1, 2020.

Emergency Paid Sick Leave Act

Effective April 1, 2020, employers with fewer than five hundred (500) employees may be required to provide up to two weeks of paid sick time (80 hours for full-time employees, or the average number of hours worked per week times two for part-time employees) for employees who need to take time off for one of the following reasons:

  1. Being subject to a government quarantine or isolation order related to COVID-19;

  2. Being advised by a health care professional to isolate due to concerns related to COVID-19;

  3. Experiencing symptoms of COVID-19 and is seeking a diagnosis;

  4. Caring for a family member who is subject to a government isolation order or a health cear professional's advice to isolate due to COVID-19;

  5. Caring for a minor son or daughter whose school or place of care has closed due to COVID-19; or

  6. Having a substantially similar condition as defined by the Department of Health and Human Services.

If the reason for leave is due to reasons 1-3 above, the employee is entitled to sick leave paid at their normal rate of pay, up to $511.00 per day. If the reason for leave is related to reasons 4-6, the employee is entitled to two-thirds (2/3) of their pay, up to $200.00 per day.

Leave under this act does not apply to healthcare workers, emergency responders, or employees of companies with 500 or more employees. It also only applies to individuals who are employed 

Employers are not permitted to retaliate against employees for requesting or taking leave under the act. The failure of an employer to provide qualifying leave under the act is treated as a violation of the Fair Labor Standards Act (FLSA) and the same remedies and penalties apply.

Emergency Family Medical and Leave Expansion Act

Effective April 1, 2020, employers with fewer than five hundred (500) employees may be required to provide up to 12 weeks of leave for employees who have been employed by the employer for 30 or more days, who are unable to work or telework due to a need to care for their minor son or daughter whose school or place of care has closed due to the COVID-19 public health emergency.

The first 10 days of leave are unpaid. After that, the employee is entitled to leave paid at two-thirds (2/3) of their normal rate of pay, up to $200.00 per day, not to exceed $10,000.00 total.

Employees who take this leave are entitled to continuation of group healthcare benefits as well as job restoration upon termination of the leave.

Employees are required to provide reasonable notice to their employers when taking this type of leave. 

The Department of Labor may exempt health care workers and emergency responders from the provisions of this act. Additionally, employers with less than 50 employees may apply for an exemption from the provisions of this act if complying with it would jeopardize the viability of the business. 

This type of leave is concurrent with other FMLA rights. Any leave under FMLA taken in the applicable 12 month period may count against the amount of time available under the Emergency FMLA Expansion act.

The CARES Act amended the EFMLAE Act to include rehired employees, as long as they were not laid off earlier than March 1, 2020 and they had worked for the employer for at least 30 of the 60 days before being laid off. 

Family Medical and Leave Act and COVID-19

Those who do not qualify under EFMLA may still qualify for leave under the Family Medical and Leave Act (FMLA). The FMLA allows for 12 weeks of unpaid leave in a 12 month period because of an employees serious health condition or to allow the employee to care for an immediate family member with a serious health condition. Employees who contract COVID-19, or who have to care for an immediate family member who contracts COVID-19 may be able to take this leave.

Employees who are covered include those that have worked for their employer for at least 12 months, and have worked at least 1250 hours in the 12 months preceding the request for leave. Employers are required to comply with FMLA if they have 50 or more employees in a given 75-mile radius. 

Though this type of leave is unpaid, it nevertheless carries with it protections and benefits for the employee. This includes the continuation of health care benefits and job restoration rights. Employers are also prohibited from retaliating against employees for requesting or taking FMLA leave. 

Watch Attorney Greg Jones March 31, 2020 Interview About the FFCRA with Fox 2 Detroit Below

For additional questions about your rights or obligations related to paid leave due to the COVID-19 public health emergency, please contact us.

 

Small Business

Resources

This is a complicated time to operate a business. Small business owners who are looking for comprehensive guidance on how to navigate the regulations imposed upon them by state and federal law, or are seeking advice as to what assistance or benefits may be available to them under these unique circumstances are encouraged to contact us. Our team is experienced in providing individualized advice for small businesses, and we are working remotely around the clock to help business effected by this pandemic.

 

Navigating The Requirements of Reopening During the Age of COVID-19

The novel circumstances created by the COVID-19 pandemic have created uncharted waters with many hazards that need to be considered by the employer who is faced with the task of reopening and calling employees back to work. The employer must consider the responsibilities imposed by long-standing state and federal laws, such as the Family Medical and Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Occupational Safety and Health Act (OSHA), the Michigan Persons with Disabilities Civil Rights Act (MPWDCRA), the Michigan Paid Medical Leave Act (MPMLA), the Elliot-Larsen Civil Rights Act, and many more. Not only that, but recent legislation and executive orders have created brand new regulations and requirements for employers to consider. The Families First Coronavirus Response Act (FFCRA) has created new requirements for employers that qualify to provide leave under certain circumstances. Michigan Executive Order 2020-91 requires employers to take specific and active measures to mitigate the risks of transmission of the virus between employees. Executive Order 2020-36 prohibits retaliation against employees who have to take time off work to quarantine because of exposure to or diagnosis with COVID-19. 

Navigating these requirements can be complicated, but small businesses don't have to go it alone. Our experienced labor and employment attorneys are available to provide comprehensive advice and counsel to businesses that are reopening and want to comply with the law and keep their employees safe. Contact us today so that we can provide individualized assistance tailored to your business's needs. 

Paycheck Protection Loans Under the CARES Act

 

The Paycheck Protection Program offers a significant benefit to qualifying small businesses. For the covered period of February 15, 2020 to June 30, 2020, it provides 100% federally backed loans in an amount up to 2.5 times of the average of the business' total monthly payroll costs. These loans are issued at reduced interest rates with relaxed approval requirements, and have significant benefits.

 

Importantly, these loans qualify for forgiveness in the amount paid by the business for payroll, rent, utilities, and mortgages during the eight weeks after the origination of the loan. Even more beneficial, when a loan under the Act is forgiven, it is not treated as income for tax purposes. However, the amount forgiven will be reduced in the event of any layoffs or salary or wage reductions during the covered period.

 

Businesses that are eligible for these loans include small businesses as defined by the Small Business Act, nonprofit organizations, veteran’s organizations, or tribal businesses so long as the business has no more than 500 employees. Sole proprietors, independent contractors, and eligible self-employed individuals are also eligible loan recipients.

Eligible businesses (including self-employed individuals) can apply through any existing SBA 7(a) lender or through any federally insured depository institute, federally insured credit union, and Farm Credit System institution that is participating. Businesses are encouraged to consult with your local lender as to whether it is participating in the program. Lenders may begin processing loan applications as soon as April 3, 2020.

 

Contact us for more information about navigating the requirements of this significant benefit available to small businesses.

The Disaster Loan Program Under the CARES Act

Businesses with no more than 500 employees who are operating in declared disaster areas (presently, all 50 US States qualify), may qualify for the Small Business Act's Economic Injury Disaster Loan (EIDL) program. These loans are offered at reduced fixed interest rates over repayment terms of up to 30 years. These loans may be issued in amounts up to $2 million. The CARES act allows small businesses to apply for an EIDL advance of up to $10,000.00 This advance provides funds within three days of a successful application. If a business receives an advance and its EIDL application is subsequently denied, the grant need not be repaid. 

Interested applicants can apply for Disaster Loan Assistance directly through the SBA, here.

Employee Retention Tax Credit

 

The CARES act provides for a payroll tax credit for eligible employers. This allows for a credit calculated at 50% of qualified wages, up to $10,000.00 per employee for the quarter, applying to wages paid between March 12, 2020 and January 1, 2021. There is a maximum credit of $10,000.00 per employee for all calendar quarters.

 

Businesses are eligible if they are required to suspended business operations fully or partially due to government shutdown during the quarter, or if their gross receipts are less than 50% than the same quarter in 2019.

 

For businesses with 100 or fewer employees, the credit applies to all qualifying wages. For businesses with 100 or more employees, the credit applies only to wages paid to employees who are not providing services.

 

Employers are excluded if they receive a loan under the paycheck protection program.

 

Qualified Disaster Payments under Section 139 of the Tax Code

 

With the invocation of the Stafford Act, Employers are able to issue additional tax free payments to employees that are deductible to the employer. Qualified disaster payments are those paid to an employee for personal, family, living, or funeral expenses resulting from a “qualified disaster”, which could include expenses such as child care, medical expenses, or increased home expenses.

 

The payments must be 1) Reasonable and necessary as a result of a qualified disaster, 2) Cannot simply be income replacement; and 3) cannot be used for expenses that are otherwise reimbursable or covered by insurance.

 

Qualified Disaster Payments are only available while invocation of the Stafford Act remains in effect. 

Relief under the Families First Coronavirus Response Act

The FFCRA requires that private businesses with fewer than 500 employees provide qualifying employees with paid leave under the Emergency Paid Sick Leave and Emergency Family Medical and Leave Expansion Act. However, the act also provides for significant dollar-for-dollar tax relief associated with benefits paid under the act. Employers are entitled to credits offset against already-owed Social Security taxes, and in the event that those credits are not sufficient to reimburse the employer for the paid benefits, the Department of Treasury is authorized to make cash payouts. 

Michigan Small Business Relief Program

The Michigan Small Business Relief Program authorizes the Michigan Economic Development Corporation to provide up to $10 million in grant funding and $10 million in low-interest loans to provide relief to businesses directly impacted by COVID-19.

 

These grants and loans will be given to counties and local economic development organizations for administration.

 

Businesses eligible for grants are those that have 50 employees or less, are affected by the COVID-19 outbreak, need working capital to support payroll, rent, mortgage payments, utility expenses, or other business expense, and are able to demonstrate an income loss as a result of Executive Order 2020-9 or the COVID-19 outbreak.

 

Businesses eligible for loan are those that have fewer than 100 employees, are affected by the COVID-19 outbreak, need working capital to support payroll, rent, mortgage payments, utlitiy expenses, or other business expenses, can demonstrate that they are unable to access credit through alternative sources, and can demonstrate a lack of income.

Michigan Work-Share and Unemployment

 

Michigan's Work-Share program allows a struggling employer to avoid layoffs by reducing employee hours and supplementing their lost income through unemployment benefits. Governor Whitmer expanded the work-share program in Executive Order 2020-24 for business that would not otherwise qualify. The same executive order provides that unemployment benefits collected by employees as a result of the COVID-19 pandemic are not to be charged to the employer's account. 

 
 

Safety in the

Workplace

Requirements for Reopening Businesses - Executive Order 2020-91

As Michigan proceeds toward re-opening its economy, Governor Whitmer has signed Executive Order 2020-91, effective May 19, 2020. This executive order sets forth various requirements for employers and businesses who are reopening as restrictions are lifted. The order requires that every employer open for in-person work develop a preparedness and response plan consistent with regulations made by the Occupational Health and Safety Administration. It also sets forth specific measures that businesses must follow to mitigate the risk of infection in the workplace. Examples of such measures include, but are not limited to some of the following:

  • Designating worksite supervisors to implement, monitor, and report on COVID-19 control strategies;

  • Providing training to all employees regarding workplace infection control practices, the proper use of personal protective equipment (PPE), the steps employees must use to notify that they have been diagnosed with or experienced symptoms of COVID-19, and how to report unsafe working conditions;

  • Conducting daily entry self-screening protocols;

  • Maintaining 6 feet of distance between employees to the maximum extent possible;

  • Providing employees with non-medical grade face coverings;

  • Increasing cleaning and disinfection protocols on high-touch surfaces;

  • Developing a response and disinfection protocol for confirmed cases of COVID-19 in the workplace;

  • Notifying the local public health department, co-workers, contractors, or suppliers who come into contact with an employee who is diagnosed with a confirmed case of COVID-19;

  • Restricting non-essential travel;

  • Promoting remote work to the maximum extent possible;

  • Adopting additional measures that are reasonable in light of the work performed

It is important to note that this executive order sets forth many other detailed requirements that employers must follow to protect the safety of their employees when opening for business. It further sets forth specific protocols for businesses whose work is primarily performed outdoors, construction businesses, manufacturing facilities, research laboratories, retail stores, offices, and restaurants and bars.

The requirements of the order are enforced by the agencies responsible for overseeing compliance with workplace health-and-safety standards. The failure to adhere to the rules set forth by the order is deemed a violation of the Michigan Occupational Safety and Health Act, MCL 408.1011.

If you are an employee and you have questions about your rights when returning to work, or if you are an employer with questions about your responsibilities when reopening, contact us.

 
Executive Order 2020-36 - "Protecting Workers Who Stay Home, Stay Safe When They or Their Close Contacts Are Sick"

On April 3, 2020, Governor Whitmer signed Executive Order 2020-36, which prohibits employers from firing or retaliating against an employee who stays home because he or she is diagnosed with or displays symptoms of COVID-19, or has close personal contact with an individual who is diagnosed with or displays symptoms of COVID-19.

Who is protected?  

 

Employees who take leave because of one of the following reasons:

  1. The employee has tested positive for COVID-19; 

  2. The employee displays one or more of the symptoms associated with COVID-19 (fever, atypical cough, atypical shortness of breath); or

  3. The employee has had close personal contact with someone who has tested positive for or displace symptoms of COVID-19.

Note: The third category of employees are not included under the order if they are health care professionals, workers at a health care facility, first responders, child protective service employees, workers at child caring institutions, or workers at correctional facilities. Additionally, the protection included in the order ceases once the employee or individual displaying symptoms of COVID-19 tests negative for the disease.

What activity is protected?

For employees that meet the criteria under the order, they may take leave to comply with the state's public policy to self-isolate.

 

This means that if the employee has tested positive for or displayed symptoms of COVID-19, they are to remain in their homes until three days have passed since symptoms have resolved, and at least seven days have passed since symptoms first appeared or since they were swabbed for the test yielding a positive result.

 

If the employee has been in close personal contact with an individual who has tested positive for or displays symptoms of COVID-19, they are to remain in their home until either fourteen (14) days have passed since the last close contact with the symptomatic individual, or the symptomatic individual receives a negative COVID-19 test.

The exceptions provided allow for the individual to leave the home "to the extent absolutely necessary" to obtain food, medical supplies, or supplies necessary to sustain or protect life where such supplies cannot be obtained via delivery. These exceptions also allow the individual to leave their home to engage in outdoor activity consistent with remaining at least six feet from people outside of their household. If an individual chooses to leave their home for one of these reasons, they should wear a face mask or some sort of covering over their nose and mouth.

An employee who returns to work before the time specified above is not entitled to protection under the order. 

Is leave under this order paid?

Not necessarily. Employees who cannot work are treated as though they are taking leave under the Michigan Paid Medical Leave Act. The Michigan Paid Medical Leave Act provides for 40 hours of paid sick leave to be provided to an employee in a given year. However, if the employee has not accrued paid leave, or if the employee has already exhausted the paid leave, time off under the executive order need not be paid.

 

Additionally, leave under this order is not limited to the 40 hour provision of the PMLA, and is instead dictated by the guidelines that apply to self-isolation, as described above.

What penalties apply to an employer who violates the order?

The order may be enforced by the Michigan Department of Labor and Economic Opportunity, in the same manner that the department enforces violations of the PMLA. Employees may file a complaint within six months of the violation. The department must then investigate. If it finds that the employer violated the order, it may award the employee the leave that was wrongfully withheld, and impose an administrative fine of up to $1,000.00. For willful violations, the employer may face additional penalties of up to $100.00 per instance. 

It should be noted that the executive order states that it does not create a private cause of action against an employer or employee for failing to abide by its terms.

Working and the Stay-Home Order

On March 23, 2020, Governor Whitmer signed Executive Order 2020-21 entitled "Temporary Requirement to Suspend Activities that are not necessary to sustain or protect life." This order broadly prohibits in-person work that is not necessary to sustain or protect life and orders all Michigan residents to remain at home with limited exceptions.

This order prohibits a business to operate or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are determined critical infrastructure workers or essential employees who are necessary to conduct minimum basic operations.

Critical Infrastructure Workers Include those described by the Director of the US Cybersecurity and Infrastructure Agency (here), including some workers in the following:

  • Health care and public health;

  • Law enforcement and public health

  • Food and agriculture;

  • Energy;

  • Water and wastewater; 

  • Transportation and logistics;

  • Public works;

  • Communications and IT, including news media;

  • Other community based government operations and essential functions;​

  • Critical manufacturing;

  • Hazardous Materials;

  • Financial services;

  • Chemical supply chains and safety;

  • Defense industrial base workers;

  • Child care (but only to the extent necessary to serve children or dependents of critical infrastructure workers);

  • Designated suppliers and distribution centers;

  • Insurance, to the extent work cannot be done remotely;

  • Businesses and volunteer organizations that provide food, shelter, and other necessities of life for the needy/disabled;

  • Critical labor union functions, including administering health and welfare funds or monitoring the well-being and safety of union members who are critical infrastructure workers.

Employees  that are necessary to Conduct Minimum Basic Operations are those whose in-person presence is strictly necessary:

  • To allow the business or operation to maintain the value of inventory/equipment;

  • To care for animals;

  • To ensure security; or

  • To process transactions such as payroll or employee benefits, or facilitate the ability of others to work remotely.

Businesses that employ critical infrastructure workers must designate which of their employees qualify and inform them of that designation. Businesses must also designate and inform their employees who are necessary to conduct minimum basic operations. All designations must be in writing (but may be made orally through March 31, 2020). Workers in healthcare and public health, workers who perform necessary government activities, and workers and volunteers who provide food, shelter, and other necessities of life for the needy, disabled, or those affected by COVID-19 need not be specifically designated nor informed of their designation.

Can an employer force an employee to violate the stay-at-home order?

As noted above, there are many exceptions to the Governor's order suspending activities that are not necessary to sustain or protect life. However, if an employer does not meet these exceptions and refuses to suspend operations, what rights are afforded to its employees?

An employer may not terminate or take another adverse employment action against an employee for his/her refusal to break the law. An employer that runs afoul of the executive order and takes action against its employees may expose itself to legal liability. If you are a small business seeking assistance on how to handle these scenarios, or you are an employee and you believe you are being unlawfully required to work, contact us for more information.

COVID-19 and OSHA Regulations

The Occupational Safety and Health (OSH) Act is administered by the Occupational Saftey and Health Administration(OSHA). It governs workplace safety and provides for workers rights and reporting guidelines for safety violations. There is no specific OSHA standard covering COVID-19 in the workplace. However some OSHA requirements may apply to the pandemic associated with the novel coronavirus. For example, the "general duty clause" requires that employers provide their employees "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 

For employees who are concerned about workplace safety, OSHA provides protection against retaliation. Employees have the right to ask what steps are being taken to ensure their safety without fear from being fired or retaliated against.

OSHA also governs the availability and use of Personal Protection Equipment (PPE) in the workplace. This is especially relevant to health care providers and those who are critical infrastructure workers that may be exposed to COVID-19 in the workplace. OSHA has issued temporary guidelines related to PPE and COVID-19. It recognizes the shortage and high demand of N-95 masks and provides some discretion to OSHA field offices in enforcing requirements, as long as employers:

  • Make a good-faith effort to comply with 29 CFR § 1910.134;
     

  • Use only NIOSH-certified respirators;
     

  • Implement CDC and OSHA strategies for optimizing the supply of N95 filtering facepiece respirators and prioritizing their use, as discussed above;
     

  • Perform initial fit tests for each HCP with the same model, style, and size respirator that the worker will be required to wear for protection against COVID-19 (initial fit testing is essential to determine if the respirator properly fits the worker and is capable of providing the expected level of protection);
     

  • Inform workers that the employer is temporarily suspending the annual fit testing of N95 filtering facepiece respirators to preserve and prioritize the supply of respirators for use in situations where they are required to be worn;

  • Explain to workers the importance of performing a user seal check (i.e., a fit check) at each donning to make sure they are getting an adequate seal from their respirator, in accordance with the procedures outlined in 29 CFR § 1910.134, Appendix B-1, User Seal Check Procedures.4 See also, OSHA tutorial videos (EnglishSpanish).5
     

  • Conduct a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit (e.g., facial scarring, dental changes, cosmetic surgery, or obvious changes in body weight) and explain to workers that, if their face shape has changed since their last fit test, they may no longer be getting a good facial seal with the respirator and, thus, are not being adequately protected; and,
     

  • Remind workers that they should inform their supervisor or their respirator program administrator if the integrity and/or fit of their N95 filtering facepiece respirator is compromised.

Considering the novelty of this situation, the implementation of these guidelines and enforcement of OSHA provisions related to COVID-19 is very much fluid. Contact us for comprehensive guidance on your rights and obligations regarding workplace safety and COVID-19.

 
 

Links and

Resources

State of Michigan Coronavirus Response Website

US DOL Frequently Asked Questions regarding Leave under the Families First Coronavirus Response Act

US DOL Wage and Hour Division Resources on Paid Leave and COVID-19

Michigan Attorney General's Guidelines for Who is Considered a "Critical Infrastructure Worker"

OSHA's COVID-19 Website

Key OSHA Guidelines related to COVID-19

EEOC - What you should know about the ADA, the Rehabilitation Act, and COVID-19

EEOC - Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

Links Related to Unemployment Compensation

Links for Small Buisnesses

State of Michigan Executive Orders

 

© 2019 by Gasiorek, Morgan, Greco, McCauley and Kotzian P.C.

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