CoronavirusMichigan’s Dept. of Labor and Economic Opportunity (LEO) and Michigan Occupational Safety and Health Administration (MIOSHA) launched a new program focused on supporting Michigan businesses to reopen safely in response to the COVID-19 pandemic.

The program is called the MIOSHA Ambassador Program. It offers education and one-on-one guidance to help businesses understand regulations on workplace safety.

Why it Matters:

Whenever a state or federal government announces programs to assist companies, I’m reminded of Ronald Reagan’s quote, “[t]he nine most terrifying words in the English language are: ‘I’m from the Government, and I’m here to help.'”

However, from our own experience in assisting our business clients, this program could offer meaningful help. These clients have consistently sought to understand the regulations and implement best practices for complying with them. And both employers and employees routinely want to know how these regulations apply to their situation. So, Michigan’s Ambassador Program could provide a bridge between the uncertainty and what is required for businesses across the state.

Go Deeper: 

Here are other guidance and resources from the Michigan Government for responding to COVID-19:

As Michigan continues to reopen the economy, employers will need to comply with the Michigan and federal policies, as well as to implement safety directives to help ensure a safe workplace for employees and customers. These resources – whether used with the Ambassador Program or just internally – are a good starting place to achieve a more safe environment for workers and customers.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article, or complying with Michigan or federal employment laws or litigating claims under both. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.

coronavirus employee testingOne Big Thing in Michigan COVID-19 News:

On August 21, 2020, U.S. Federal Court Judge Paul Maloney of the Western District Court for Michigan issued an order denying a motion for a preliminary injunction over the State of Michigan’s testing requirements for agricultural and food processing workers.

What’s Next: 

This was a preliminary order for injunctive relief. So the lawsuit (Castillo v Whitmer, Case No. 1:20-cv-751) will theoretically continue. But as explained below, the Judge made several significant rulings that will make it difficult for the plaintiffs to ultimately be successful. It it is also another major “judicial win” for Governor Whitmer and her administration against those second-guessing Michigan’s response to COVID-19.

Go Deeper: 

The Michigan Department of Health and Human Services (MDHHS) issued an Emergency Order that applied to agricultural employers and owners and operators of migrant housing camps. The Emergency Order mandates COVID-19 testing of these employees. If workers test positive for the coronavirus, or if workers refuse to be tested, they cannot work.

In the press release from the MDHHS, it welcomed the ruling:

The Michigan Department of Health and Human Services required testing for COVID-19 among certain workers as part of a carefully considered plan to protect a segment of Michigan’s workforce that is at an exceptionally high risk of COVID-19. The department welcomes today’s ruling by a federal court rejecting an attempt to undermine this critical program to save lives.

Why it Matters: 

The Plaintiffs argued that the Emergency Order mandates COVID-19 testing of essentially “Latino agricultural workers” because the State requires testing only at places where the workers and residents are overwhelmingly Latino. The plaintiffs urged the Court to conclude the Emergency Order used “race,” which required a high and exacting standard (”strict scrutiny”) to justify it. The plaintiffs also argued that it did not, and thus discriminated on the basis of race.

The Court easily rejected this argument because the Order and testing requirements apply regardless of one’s race. Thus, the Court will apply the much lower standard called “rational basis” to analyze the contested government action going forward. Under that standard, the Emergency Order must only serve a legitimate public interest. With over 177,000 Americans dead from the virus and counting, it’s hard to see how the plaintiffs will show that slowing the spread of COVID-19 does not meet that requirement.

The order is available here.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws.  Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.

OSHA COVID-19 Worker SafetyThe AFL-CIO sued to require the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) to protect workers from the novel coronavirus.

Why it Matters

To date, OSHA has refused calls from lawmakers and Union leaders to issue a temporary emergency standard in response to the Covid-19 pandemic.

If successful, all U.S. workplaces subject to OSHA rules will be required to develop workplace safety plans to safeguard workers against the risk of airborne disease transmission. The petition, filed on May 18, 2020, is available here, American Federation of Labor and Congress of Industrial Organizations.

Details about the Filing

The Union’s emergency petition explains that COVID-19 has caused more deaths among workers in a shorter time than any other health emergency OSHA has faced in its fifty-year existence. Many more deaths are likely as the economy reopens. These infections are from exposure to ill co-workers, patients, customers, and members of the public not screened before entering a workplace or were otherwise asymptomatic upon entering.

In a sharply worded petition, the AFL-CIO argues the agency’s unwillingness to issue an emergency standard is a blatant abuse of discretion. Specifically:

… in the face of a global health emergency causing more deaths in less time than any other workplace crisis OSHA has faced in its fifty-year existence, OSHA’s refusal to issue an ETS constitutes an abuse of agency discretion so blatant and of ‘such magnitude’ as to amount to a clear ‘abdication of statutory responsibility.’

OSHA says employers already have a general duty to maintain safe workplace

Both Labor organizations and Democratic lawmakers have called for OSHA to issue emergency temporary standards for infectious diseases; Democratic lawmakers failed to add language to previous coronavirus-response legislation to require OSHA to issue an emergency temporary standard covering employees whose jobs have a high degree of potential exposure.

But Labor Secretary Eugene Scalia has refused. He believes OSHA can handle the issue through enforcement actions under the Occupational Safety and Health Act’s “general duty” clause. This clause requires employers to maintain a hazard-free workplace.

Our Thoughts

With the lack of legislation, OSHA has not made it any easier for employers to minimize Covid-19 risks in the workplace. Thus, employees and customers are not necessarily safer as the economy reopens. Sure, OSHA released various directives and guides (about 15) for employers and workers to consider in response to the Covid-19 pandemic. And those guides are good practices to generally follow. But these are not rules, they are not mandatory, and many are highly discretionary for the employer.

Further, the New York Times previously reported OSHA would not inspect workplaces aside from those in high-risk activities like health care. Additionally, from a practical stand-point, OSHA probably does not have the resources to respond to current and prospective complaints. For example, the Washington Post reported over 3,000 worker complaints regarding the coronavirus were filed with OSHA from January through early April.

A “one-size-fits-all standard” is not likely to make sense for making a safe workplace in response to Covid-19. But neither does relying on employers to come up with their own ways of trying to mitigate Covid-19 risks, especially where inspections and enforcement are lacking.

So while the President calls for an immediate reopening of the economy, that call should be accompanied by governmental agencies like OSHA stepping up with an emergency coronavirus legal standard. A standard specific to the pandemic – and not general working conditions – could help protect workers and customers from coronavirus risks.

Coronavirus Legal Consultation

If you’re concerned about the safety of your business or the safety of your workplace in relation to these COVID-19 safety protocols use this link to begin your consultation. 

Michigan attorney Jason Shinn has represented employers and employees in OSHA/MIOSHA and employment legal issues since 2001.

Coronavirus May 7, 2020, marks the re-opening in Michigan of the construction industry and other business segments from a broad stay-in-place order. Specifically, Governor Whitmer has begun to relax her prior stay-in-place order, allowing the resumption of some types of work.

Such work is expected to present a lower risk of infection and spread as Michigan continues to deal with high numbers of confirmed COVID-19 cases and deaths. The most recent data shows Michigan has over 45,000 confirmed cases and over 4,000 deaths.

Why it Matters:

There is enormous pressure for Michigan, like the rest of the United States, to lift coronavirus health and safety restrictions limiting economic activity. But is it safe?

Michigan’s confirmed COVID-19 cases show signs of tapering off, the number of cases and deaths remain high. However, the evidence is mounting that the coronavirus outbreak is far from under control here and across the United States. Consider 72,000 Americans who have been killed by COVID-19 and over 1.2 million infected according to reporting by John Hopkins University.

Against this backdrop, Michigan’s Department of Labor and Economic Opportunity issued requirements for these employers and provided further guidance on best practices for protecting workers and reduce the spread of COVID-19.

These guidelines and will also provide guidance, in whole or part, for other industries as Michigan looks to transition from stay-in-place to staying safe while returning to work. But the bottom line is that companies are and will continue to modify “business as usual” post-pandemic. Hopefully, these new requirements provide a good foundation.

The Guidelines for Construction Employers:

Under Governor Whitmer’s Executive Order (Executive Order 2020-70), construction industry employers may go back to work, but are must:

  • Designate a site supervisor to enforce COVID-19 control strategies.
  • Conduct daily health screenings for workers.
  • Create dedicated entry points, if possible, or issuing stickers or other indicators to assure that all workers are screened every day.
  • Identify choke points and high-risk areas (like hallways, hoists, and elevators, break areas, water stations, and buses) and controlling them to enable social distancing.
  • Ensure sufficient hand-washing or hand-sanitizing stations at the worksite.
  • Develop a COVID-19 preparedness and response plan, consistent with recommendations in OSHA’s Guidance on Preparing Workplaces for COVID-19.
  • Keep workers and patrons on premises at least six feet from one another to the maximum extent possible.
  • Increase standards of facility cleaning to limit worker and patron exposure to COVID-19.
  • Provide personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.

Further, Michigan government officials and construction industry leaders have drafted best practice guidelines of employer responsibilities to further minimize the spread of coronavirus risks. These guidelines include:

  • Training and administrative controls
  • Access control
  • Policies governing social distancing
  • Policies governing disinfection/sanitation
  • Personal hygiene
  • Policies governing personal protective equipment (PPE)
  • Positive case protocols
  • Facility closure scenarios

Coronavirus Legal Consultation

If you’re concerned about your employment rights or the safety of your workplace in relation to these COVID-19 workplace safety protocols use this link to begin your consultation.

Michigan attorney Jason Shinn has litigated legal issues involving the protection of employees’ rights and safety since 2001.

Stay at home orderA Michigan woman sued her former employer for allegedly violating the Governor’s Executive Stay Home, Stay Safe” orders. This suit was filed in Michigan Circuit court on April 15, 2020. The former employee also filed a claim of retaliation with the Michigan Occupational Safety and Health Administration (MIOSHA).

Why it Matters

Michigan, like most states, is an “at-will” employment state. This means an employee can generally be terminated for any reason or no reason. But one exception is wrongful termination in violation of public policy, i.e., an employee cannot be terminated for refusing to break the law.

Here, Michigan’s Executive Order and subsequent extension is binding “law.” Thus, employers could be potentially liable for retaliating or terminating employees for refusing to violate these orders.

But whether an employer violates these orders is not clear-cut. This is because there is a distinction between “essential” and “non-essential” employees. Under the Executive Orders “non-essential” means the employer and employees must comply with Governor Whitmer’s Stay Home, Stay Safe Executive Order (No. 2020-24).

Also, employers could face liability for MIOSHA violations if an employee asserts they had to work in an unsafe workplace. Whether situations arising from the pandemic equate to “unsafe workplaces” will be contested.

Opening the Pandemic Employment Litigation Floodgates

Amber Gorby worked as a retail sales manager for Hometown Pharmacy. She had an office job and was responsible for ordering general merchandise for Hometown Pharmacy’s various locations. She asserts all of her essential duties could be and have been performed remotely.

However, the company’s president made no changes to her or her co-workers’ tasks, including allowing for telecommuting.

Ms. Gorb claims she voiced her concerns that failing to allow her to work remotely violated Gov. Whitmer’s executive order and it would be against the law to follow her employer’s directions. She further claims – despite a discipline-free 16-year tenure – she was fired hours after expressing her concerns. Ms. Gorby had been working there for over 16 years without discipline. The claim is pending in Newaygo County Circuit Court.

Adapting to the New “Pandemic Normal”

As Michigan businesses continue to operate under stay-in-place restrictions and prepare the lifting of these restrictions, they must consider how best to cope with a vast array of pandemic related issues. These include safely restarting operations in compliance with MIOSHA and otherwise protecting the safety of employees and customers.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article, or complying with Michigan or federal employment laws or litigating claims under both. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.

Coronavirus Legal Consultation

If your employment or business has been affected by these or other coronavirus-related issues and you would like to start a free consultation, please follow this link so we can begin our assessment.

Michigan reported a reduction of confirmed coronavirus cases over the weekend. But the State cautioned the reduction may be attributed to low testing over holiday weekend rather than an actual reduction in cases.

Here’s the statement from the Michigan Department of Health and Human Services (MDHHS):

Although a reduced number of COVID-19 cases are being reported today, 645 cases compared to 1,392 reported on April 11, and deaths, 95 compared to 111 on April 11, we cannot say if this represents a true decline in COVID-19 cases and deaths in our state. 

Reported case counts may reflect a reduction in the amount of laboratory testing performed over the weekend and holiday. Single day fluctuations in the number of confirmed cases may not be significant, as a number of external factors can affect data reporting. 

The testing date from previous weeks appears to support this conclusion. Still, Michigan’s coronavirus cases remain staggering.

Michigan Coronavirus testing

 

 

 

 

 

 

 

 

Even so, many businesses are and will need to start planning for what happens when they’re allowed to reopen and bring employees back to work.

Recent CDC Guidance for Returning People to Work

On this point, the CDC recently issued some guidance for making this transition as to “essential workers.” Still, the reasoning could be extended to non-essential workers when federal and Michigan health professionals deem it appropriate. 

As to “essential workers,” the CDC explained such workers who have been exposed to coronavirus could keep working as long as they are asymptomatic. 

But the CDC continues to recommend employers to regularly take exposed workers’ temperatures, require them to wear masks and social distance “as work duties permit,” and routinely clean workspaces. Employers should be especially cautious about following the CDC’s guidance for when workers exposed to the virus may return to work.

  1. First, according to the CDC, people who have the virus may remain asymptomatic for 2-14 days after exposure while continuing to spread it. Other studies have reported 
  2. Second, Propublica (by  Caroline Chen) explained an asymptomatic carrier of the virus poses the greatest risk for employers, co-workers, and customers. The increased risk is because the period when a person does not show any symptoms, or only mild symptoms coincides with the viral load — the amount of virus being emitted from an infected person’s cells — may be the highest. 

These two points are equally concerning and make for confusion in applying the CDC recommendation. This is because employers are getting CDC recommendations that do not necessarily line up with what the scientific facts when it comes to bringing people back to work.

As with many assertions from the federal government about the coronavirus,  they have not always been based on the best information, consistent with the scientific community, or proven to be accurate. We will continue to follow the CDC’s recommendations for returning individuals to work and other employment issues related to COVID-19. 

COVID-19On April 9, 2020, Michigan Governor Whitmer, extended the State’s March 23, 2020 “Stay Home, Stay Safe” order. It was set to expire on April 13, 2020, but it will now extend through April 30 and goes into effect tonight at 11:59 PM.

Continued Limits on Employers and Employees

Consistent with the prior order, the extension (Executive Order 2020-42) places limits on gatherings, travel, and all workers who are not necessary to sustain or protect life to stay home, with very limited exceptions.

As to employers,  they remain prohibited from requiring workers to leave their homes, unless those workers are necessary to sustain or protect life or to conduct minimum basic operations. Further, businesses and operations are to designate the workers who meet those criteria and must adopt social distancing practices and other mitigation measures to protect workers and patrons in the performance of that in-person work.

Workers who are necessary to sustain or protect life include those in health care and public health, law enforcement and public safety, grocery store workers, and more. For a full list of these critical infrastructure workers, click the link to Executive Order 2020-42 at the bottom of this page. To enable these critical workers to get to their workplaces, automobile dealerships will now be allowed to open for remote sales, though showrooms must remain closed.

Extension Needed as Michigan Confirmed Coronavirus Cases Climb

The extension of Governor Whitmer’s initial stay at home order was not unexpected because of the significant increase in confirmed COVID-19 cases. Here is what she had to say:

Michigan has the third-highest number of COVID-19 cases in the country, and we’re still on the upswing. We must continue to do everything we can to slow the spread and protect our families. Data shows that most Michiganders are doing their part by staying home and staying safe. That’s good, but we must keep it up. When we do, we can save lives and shorten the amount of time we’re working through this crisis, which will be good for our families and good for our economy in the long-run. We can also protect critical infrastructure workers like doctors, nurses, grocery store employees, and child care workers. Now more than ever, it’s crucial that people stay home and stay safe.

New Restrictions under the Order

The new order, however, also imposes more stringent limitations on stores to reduce foot traffic, slow the spread of the coronavirus, and save lives. It also places restrictions on what large stores may continue to sell. For example, large stores must also close areas of the store that are dedicated to carpeting, flooring, furniture, garden centers, plant nurseries, or paint.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or for complying with coronavirus related governmental orders.

Coronavirus closuresToday (3/23/2020), Michigan’s Governor issued an executive order (No. 2020-21) for the temporary suspension of activities in Michigan not deemed “necessary to sustain or protect life.” This order goes into effect on March 24, 2020, at 12:00 AM and continues until April 13, 2020, at 11:59 PM. A full copy is available here.

The Order imposes numerous restrictions on both personal and commercial activities.

As to commercial activities, all work that is not “necessary to sustain or protect life” is prohibited, except for businesses that employ workers (1) necessary to sustain or protect life, which is defined as “critical infrastructure workers (CIW);” or (2) individuals who must work to conduct minimum basic operations of the business (“MBO Worker”).

The Order adopts the definition of CIW used in the Director of the US Cybersecurity and Infrastructure Security Agency’s (CISA) March 19, 2020 guidance on responding to Covid 19 (the “CISA Guidance”). The Order also specifies other workers not described in the CISA Guidance who will be considered CIW. These jobs include childcare workers, workers and volunteers for businesses providing food, shelter, and other services for economically disadvantaged individuals, workers in the insurance industry that cannot perform their work remotely, workers performing “critical labor union functions” that also cannot be done remotely.

To qualify as an MBO Worker, businesses must make that determination and follow proscribed notice requirements, and following other practices intended to limit the spread of the coronavirus.

What Should Your Business Do in Response to the Michigan Suspension Order?

First, business owners should determine whether they may continue to operate under the exceptions provided for in the Order. Importantly, even if your business does not fall into a category exempted by Governor Whitmer’s Order, it may still continue to operate if it employs workers in relation to providing services as a “designated supplier or distribution center” for businesses or operations that do employ individuals considered CIW’s.

Second, you should focus on which individuals may continue to work under the Order and comply with the notice requirements for that determination.

Third, businesses who may continue operations and employ individuals working under either the designation of a CIW or MBO Worker must follow certain measures described in the Order to protect the health and safety of their workers and the public. Among these measures are following the CDC recommendations or social distancing of at least 6 feet, increased standards of facility cleaning and disinfection, adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person known or suspected to have been diagnosed with having the coronavirus.

In addition to complying with this Suspension Order, business owners should also be looking at recovering financial losses related to the coronavirus shut-down, which may be covered under business insurance interruption policies. For more information on this topic, see our firm’s publication, Coronavirus Closed Your Businesses; Can You Recover Your Losses?

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or for complying with coronavirus related governmental orders.

Michigan first reported two confirmed cases of coronavirus on March 10, 2020. One week later, that number has jumped to 54. The State plans to update its confirmed cases daily at 2 PM at its coronavirus website. This website is a great resource.

On March 16, 2020, Gov. Whitmore signed an executive order temporarily closing bars, theaters, casinos and other public spaces. The order limits restaurants to delivery and carry out orders only. These restrictions will remain in place until March 30, 11:59 PM.

Notably, Michigan’s restrictions follow the drastically revised federal recommendations for limiting gatherings to no more than 10 people. The prior recommendation was 50. The New York Times reported that the revised recommendations stem from fatality estimates from a report from researchers at the Imperial College London. They found without changes to the coronavirus response, the death toll in the United States could rise to 2.2 million.

The potential death toll from the coronavirus is alarming. But equally unsettling is the extended scope likely needed for a successful virus intervention; According to the researcher’s report (Impact of Social Interventions to Reduce COVID-19 Mortality):

The major challenge of suppression is that this type of intensive intervention package – or something equivalently effective at reducing transmission – will need to be maintained until a vaccine becomes available (potentially 18 months or more) – given that we predict that transmission will quickly rebound if interventions are relaxed. We show that intermittent social distancing – triggered by trends in disease surveillance – may allow interventions to be relaxed temporarily in relative short time windows, but measures will need to be reintroduced if or when case numbers rebound.

(emphasis added). This report was shared with the Trump administration around March 9, 2020. Days later Trump tried to give a national address to give confidence about his handling of the pandemic. He made no reference to these dire predictions or recommendations.

Unfortunately, the discrepancy between these and other findings and the once rosy predictions from the Trump Administration about the coronavirus cannot be reconciled. Instead, it is becoming increasingly apparent that businesses and governments must prepare for the likely reality that this latest pandemic is not going away any time soon. And therein is the true frustration.

Specifically, businesses, their employees, and citizens are resourceful and resilient. At our law firm, we live and breathe the “best-and-worst-case scenarios” that our Business clients and entrepreneurs routinely use for planning. But that sort of preparation only works if we are making informed decisions; not hoped-for outcomes that have little to no factual basis. So for any politician reading this, just be honest.

On this point, a good quote to live by, especially in times like now is from Marcus Aurelius:

Objective judgment, now, at this very moment. Unselfish action, now, at this very moment. Willing acceptance—now, at this very moment—of all external events. That’s all you need.

(Aurelius, Marcus. Meditations (Modern Library) (p. 119). Random House Publishing Group. Kindle Edition).

Among the areas where employers should now exercise objective judgment is its readiness to conduct operations under extended pandemic conditions. For starters, look at implementing or updating your work from home policies, revisit your sick-leave procedures, make sure worker’s compensation and other business insurance policies cover remote work-cites, and understand how federal and Michigan employment laws may affect sick or quarantined employees.

For continued updates about the COVID-19 coronavirus and responding to it, please subscribe to this publication. For specific questions, use this link to contact Michigan attorney Jason Shinn.

COVID-19

The Department of Labor (DOL) announced guidance on March 12, 2020, for how States can pay unemployment insurance benefits to employees who miss work because of the coronavirus. Here is the DOL’s COVID-19 Bulletin.

The Federal DOL generally oversees unemployment insurance benefits systems. But States actually handle applications and payments. In so doing, States also generally determine eligibility requirements for such benefits.

Because of this overlap between Federal and State agencies, the DOL’s guidance provides an important roadmap for States to extend unemployment benefits eligibility to employees affected by the coronavirus, including in these three scenarios:

  • employees who miss work because of a medical quarantine;
  • employees who choose not to work to avoid exposure (self-quarantine) or to care for a family member with the virus;
  • employees laid off because their employers cease or limit operations in response to the pandemic.

The value of the DOL’s guidance will be magnified if the House Democrats get enacted their “Families First Coronavirus Response Act.” This Act (H.R. 6201), is a package of measures that would:

  • Provide as much as $1 billion for emergency transfers to States to process unemployment insurance claims and pay benefits;
  • It would allow for an additional 13 weeks of benefits, beyond the standard 26-week period;
  • Establish free coronavirus testing; and
  • Provides paid leave.

On this last point, providing paid leave is especially important because most states do not require this and the DOL expressly states unemployment benefits are “not intended to be used as paid sick leave.” See Section 3(b) of the DOL COVID-19 Bulletin. Thus, the paid leave would be important to minimize the spread of the virus by giving employees a real choice between taking time off if they may have been exposed to the virus or missing a desperately needed paycheck.

For continued updates about the COVID-19 coronavirus and responding to it, please subscribe to this publication. For specific questions, use this link to contact Michigan attorney Jason Shinn.