WHAT PROTECTIONS DO EMPLOYEES HAVE AGAINST RETALIATION DUE TO COVID-19?
The laws protecting employees from retaliation arising out of Covid-19 have been shifting and changing throughout the pandemic. The much publicized Families First Coronavirus Response Act (FFCRA) provided expanded paid sick leave and family and medical leave for certain employees who were unable to work due to illness, testing, or child care. But, those protections expired December 31, 2020. Michigan’s Governor Whitmer issued Executive Orders which provided paid sick leave and time off for certain employees, but those Executive Orders were found to be unenforceable by the Michigan Supreme Court on October 2, 2020. So, what is left?
On October 22, 2020, Michigan passed legislation (MCL 419.401-419.412) retroactive to March 1, 2020 which provides, among other things, protection for employees who test positive or display principal symptoms of Covid-19. Such employees shall not report to work until 24 hours have passed since fever has stopped without the use of medicine, and ten days have passed since the latter of (1) the date the symptoms first appeared, (2) the date the employee received a positive test, or (3) the employee’s principal symptoms have improved. The Act also protects employees who have close contact with an individual who tests positive or who have close contact with an individual who displays the principal symptoms. These employees shall not report to work until one of the following is met: (1) 14 days after the last close contact; or (2) the person the employee had close contact with receives a medical determination that they did not have Covid-19. Employers may not discipline, discharge or retaliate against an employee who does not report to work for the reasons listed above, who opposes a violation of the Act, or who reports health violations related to Covid-19. The list of “principal symptoms” is very broad and many are subjective. However, there is no protection for an employee who after displaying the principal symptoms of COVID-19, fails to make reasonable efforts to schedule a COVID-19 test within 3 days after receiving a request from their employer to get tested for COVID-19.
Therefore, under this law, employees who meet these requirements would be protected from termination. It is important to note, though, what protection this law does not provide. First, the law does not require that employees be paid for these absences. The employee’s right to payment would depend upon whether they have any remaining sick pay under Michigan’s Paid Sick Leave Act or under their employer’s policies.
Second, the law does not give employees the right to refuse to work based on fears or concerns about Covid-19 or because they believe that their employer is not following Covid-19 safety protocols. Such workplace safety concerns may be reported to the state or federal Occupational Safety and Health Administration (OSHA). Under OSHA rules, employees may only refuse to work because of safety concerns if the assignment involves “a risk of death or serious physical harm” and all of the following apply: (1) the employee “asked the employer to eliminate the danger, and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.” This is an extremely difficult standard to meet, and therefore an employee who refuses to work because of concerns about contracting Covid-19 at the workplace runs a substantial risk that they will be terminated and have no legal recourse.
Employees who do report suspected violations of law to OSHA, MIOSHA or to other public bodies are protected from retaliation under applicable whistleblower laws. However, it is not enough just to show that the employee made a report and was later terminated. There must be evidence that the termination was because of the report. Employees who are terminated under circumstances related to Covid-19 should contact an attorney to evaluate their potential rights and claims.
Written by David A. Kotzian