Don't Go It Alone: Navigating the Complications of Reopening in the Age of COVID-19

As Michigan continues to adjust to the new normal imposed by the realities of the coronavirus pandemic, businesses are faced with a number of novel challenges. Not only has the virus changed the economic landscape, but employers are now faced with the difficult task of complying with the law. The novel circumstances created by the COVID-19 pandemic have created uncharted waters with many hazards that need to be considered by the employer that 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. Under what circumstances might an employee be entitled to job-protected leave by the Family Medical and Leave Act (FMLA)? What accommodations must be made for employees with compromised immune systems or for employees who cannot wear masks due to respiratory problems under the Americans with Disabilities Act (ADA) or the Michigan Persons with Disabilities Civil Rights Act (MPDCRA)? What steps must be taken to ensure that the company does not engage in unfair labor practices prohibited by the National Labor Relations Act (NLRA)? What protections must be provided to an employee who reports the business's safety practices under the Michigan Occupational Safety and Heath Act (MIOSHA) or the Whistleblowers' Protection Act (WPA)?

As if that was not complicated enough, since the outbreak of COVID-19 there have been significant changes to laws and regulations that apply to employers. The Families First Coronavirus Response Act (FFCRA) took effect on April 1, 2020 and applies through December 31, 2020. It sets forth two new categories of mandatory paid leave that qualifying employers must provide for employees, and requires that notice of rights under the act be posted in a conspicuous manner on the business premises. Additionally, as of the date of this publication, Governor Whitmer has signed 93 separate Executive Orders relating to the Coronavirus pandemic. On May 18, 2020, Executive Order 2020-91 set forth extensive requirements that employers must take when reopening in order 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.

This is simply a taste of some of the laws and regulations that already exist. We haven't even mentioned legislation or administrative rulings that are being considered. Each of the laws mentioned above are being challenged and interpreted in state and federal courts and administrative agencies. Staying on top of the ever-changing legal landscape while juggling the economic uncertainty caused by this pandemic can seem daunting. Rightly so.

It is a near impossible task for an employer to manage his or her business and stay on top on all of these laws. However, the risks of not doing so are significant. If not careful, business owners risk administrative fines, exposure to lawsuits, and in some cases, even criminal penalties.

Our experienced labor and employment attorneys are available to provide comprehensive advice and counsel to businesses that want to comply with the law and keep their employees safe. We can help you develop a Preparedness and Response Plan that is tailored to your business and keeps you in compliance with the law. We can answer your questions about how to best handle the complications that arise when your employees return to work. We can help you prepare an employee handbook that will make sure your employees have a safe workplace that is free from discrimination and harassment.

Don't go it alone. Contact us today so we can help you navigate the law in these complicated and ever-changing times.

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Gasiorek, Morgan, Greco, McCauley & Kotzian Attorneys at Law

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