coronavirus business proections

Michigan Governor Gretchen Whitmer signed into law bipartisan legislation known as the “COVID-19 Response and Reopening Liability Assurance Act” (COVID Assurance Act).

Why it Matters:

This Act provides protections to Michigan workers relating to the spread of COVID-19 and protecting businesses that implement strict safety measures to keep workers, customers, and their families safe. Further, it is retroactive to March 1, 2020.

The Act was praised by labor and business organizations alike. It is supported by the Michigan Chamber of Commerce and Governor Whitmer’s press release included favorable quotes about the legislation from Michigan AFSCME Council 25’s President Lawrence A. Roehrig.

Going Deeper:

Under the COVID Assurance Act:

  • Employers must allow workers who are exposed to COVID-19 or exhibit the symptoms of COVID-19 to stay home, and prohibit retaliation against employees for staying home when sick or exposed to the virus.
  • Employers may face bills also provide a minimum damages award of $5,000 for violations. Awards may be higher than that in the event of more serious conduct or injuries.

The COVID Assurance Act does not affect rights, remedies, or protections under Michigan’s worker’s disability compensation act.

What’s more, if a Michigan business complies with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19, including epidemic orders and rules, they are not liable:

  • For a person becoming sick at the business; or
  • Under the Michigan Occupational Health and Safety Act for a worker becoming sick at work.

Also, employers do not even need to be in complete compliance with applicable rules or regulations to benefit from the Act’s protections: An “isolated, de minimis deviation from strict compliance” from applicable COVID-19 statutes, rules, regulations, executive orders, and agency orders that is “unrelated” to the plaintiff’s injuries will not eliminate immunity provided by the Act.

Thoughts on the Legislation – Potentially Confusing and likely an Insurmountable Hurdle to Liability

If you are a business owner, the COVID Assurance Act is great news. It will protect against frivolous lawsuits. But it will also likely essentially eliminate liability for most plaintiffs suing over contracting COVID-19.

Here’s why:

  1. First, in all except extreme situations of self-isolation, proving where you contracted the virus may be an insurmountable hurdle for plaintiffs. And a plaintiff will need to be prepared to show they did not bring the virus into the business.
  2. Second, the “substantial compliance” component of the COVID Assurance Act will be a go-to defense. It’s unclear how businesses will be graded on this (e.g., if 85% of employees wear masks, is that good enough? If social distancing is mostly enforced, is that “substantial compliance?”) but it will likely be a favorable curve.

So what’s not to love? The Act’s requirement to comply with applicable COVID-19 regulations from federal, state, and local governments will be problematic. This is a lot of regulation to track. And these regulations change as more is learned about the virus.

Further, the regulations from the various branches of federal, state, and local governments don’t always match up. At the federal level, you see this almost every time President Trump speaks or Tweets; He’s routinely contradicting or even denigrating subject matter experts at the Centers for Disease Control or state health departments, including on things as basic as wearing a mask to prevent the spread of the virus.

Or consider his past promotions of unproven or outright hazardous practices. Remember when he (in)famously opined that injecting disinfectant into the body could be “tremendous.”

Nonetheless, to benefit from the protections under this legislation, business owners must invest in staying on top of applicable coronavirus legislation, rules, orders, and regulations. And they will need to show they regularly enforced those COVID-19 rules in the workplace. Both won’t always be easy, but the protections should be well worth the effort.

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.

COVID-19 Employment Obligations
Face Mask Halloween

The Michigan Supreme Court, in a divided opinion, recently invalidated  Michigan’s Emergency Powers of Governor Act of 1945, MCL 10.31 et seq. This was the statute under which Governor Whitmer issued a number of COVID-19 executive orders. Those orders, therefore, will now be void by the end of October. The case is Midwest Inst of Health, PLLC v Governor of Michigan (In re Certified Questions from the United States Dist Court), _ Mich __, __ NW2d __ (Oct. 2, 2020).

Why it Matters:

The Governor, through various executive Orders, imposed many COVID-19 restrictions and mask requirements for Michigan businesses and employees.

Voiding these executive orders, however, does not mean Michigan employers will be unregulated when it comes to COVID-19. Instead, businesses must continue to comply with administrative regulations from Michigan agencies and county health departments and be aware of new such regulations that will likely fill the vacuum created by the Michigan Supreme Court.

Go Deeper: What this means for employers and employees.

With Governor Whitmer’s executive orders no longer in place, many other regulations remain or have been issued following the divided Supreme Court Opinion. Here are regulations employers should understand:

  • Michigan Department of Health and Human Services

On October 5, the Michigan Department of Health and Human Services (Human Services) issued an order intended to partially fill the gap created by the Supreme Court’s opinion. The emergency order provides in relevant part:

  1. Limitations on attendance at certain gatherings.
  2. Face covering requirements, except for limited circumstances.

As to face masks and business operations, the Human Services’ order requires the wearing of face coverings for indoor gatherings at businesses, government offices, schools, and “other operations.” There are exceptions to the face covering requirements; masks are not required for children younger than five, individuals who cannot medically tolerate a face covering, and when eating or drinking while seated at a food service establishment.

In contrast to the former executive orders, the Human Services’ Order does not allow an exemption from the mask requirement at “gatherings” even if the participants are maintaining social distancing of six feet. The order went into effect on October 5, 2020, and remains in effect through October 30, 2020.

Violation of the Human Services’ order is a misdemeanor. It is punishable by imprisonment for not more than six months, a fine of not more than $200, or both. Law enforcement officers may enforce the order or coordinate with other entities on enforcement.

  • MIOSHA COVID-19 Employment Regulations

On June 17, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) adopted a COVID-19 Interim Enforcement Plan. Many requirements in the now voided executive orders are found in MIOSHA’s guidance. For example, the MIOSHA plan includes example citations for failing to implement a protocol to protect employees from coworkers with COVID-19.

The plan also establishes policies and procedures for handling COVID-19 issues, including fatalities, hazards, and how citations for COVID-19 workplace hazards will be handled.

  • County Health COVID-19 Regulations

Additionally, many counties issued orders after the Michigan Supreme Court’s opinion. These counties include Washtenaw, Ingham, and Oakland County. But Oakland has since rescinded its order since the Michigan Department of Health and Human Services issuance of its order. Employers should anticipate other Michigan counties will continue to adopt their own order.

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.

Virus protectionToday, Mr. Trump was released from the hospital after three days of being treated for COVID-19. He returned to the Whitehouse to immediately provide an egregious example that no company should follow when it comes to COVID-19.

Specifically, Mr. Trump decided to pose for an obvious photo and video shoot in the Whitehouse by removed his mask. This happened at a time when there is increasing concern by White House staffers and employees who have seen their workplace emerges as a virus hot spot thanks to the decisions of its Resident in Chief.

The coronavirus is a highly contagious virus. It is spread through airborne particles that can linger in the air “for minutes or even hours” — even among people who are more than 6 feet apart. Wearing a mask is one way to limit the spread.

Mr. Trump, as the President of the U.S., is not your average employer. But for most employers, commitment to the health and safety of employees and customers should be a top priority. To commit to that priority means lessening the risk of exposure. If basic human decency is not enough of a reason to wear a mask, then consider any number of legal or regulatory issues most employers face.

To limit the risks of spreading the virus, follow the latest guidance from federal, state, and local governmental health authorities, including, but not limited to, the Centers for Disease Control and Prevention (CDC). And at this point, if in doubt, do the opposite of what Mr. Trump does. Presently, the CDC has identified two options for when employees may discontinue in-home isolation for individuals who are not immunocompromised: (1) symptom based strategy and (2) test-based strategy.

This post is written, in part, out of frustration. For over six months now, my family and I have worn masks when we go out in public. Thankfully, we are not likely to be in a high risks category if we were to contract the COVID-19 virus (although the math around “likely” changes when it involves one’s family). Yet we follow the recommendations and the science behind the recommendations for wearing a mask. And we do this for those we may encounter. You could even call it a duty demanded by basic human decency.

We will continue to play by the rules, follow the science, and lead by example for our child and avoid the political theater. Hopefully, most will do the same.

restaurant closed by covid-19A Michigan based company was recently sued for allegedly firing its assistant manager after contracting the COVID-19 virus. The suit claims this firing violated the Families First Coronavirus Response Act, the Emergency Paid Sick Leave Act, the Family Medical Leave Act, and Michigan Executive Order 2020-36.

Why It Matters:

Two things stand out about this lawsuit. First, you have an employer who appears to have gone to significant lengths to protect customers and staff from being exposed to COVID-19. Second,  trying to do the right thing still means an employer must pay attention to the details. And those details involving employee disciplinary action will be more complicated when it comes to COVID-19.

Go Deeper:   

According to the complaint, Prada v. Trifecta Productions, LLC (d/b/a Tomukun Noodelbar) the plaintiff worked for a noodle bar in Ann Arbor as a waiter and assistant manager. The suit alleges the plaintiff told his manager that he was not feeling well around June 24, 2020. And he was diagnosed with COVID-19 on June 27, 2020.

The restaurant then announced on July 1, 2020, that it had learned an employee tested positive for COVID-19 and that it would close so that employees could get tested and the restaurant could be professionally cleaned. About a week later the restaurant reopened for carry-out.

Meanwhile, the plaintiff claims he had recovered from COVID-19 without further complications. Yet Plaintiff alleges that the restaurant did not pay him for sick leave, fired him, and told him “For PR reasons it would be best for you not to come back.”

As to the legal claims, the plaintiff asserts Trifecta’s termination violated:

  • Michigan Executive Order 2020-36, which prohibits “discharging, disciplining, or otherwise retaliating against an employee . . . for staying home from work …” for times covered in under the statute.
  • The Families First Act, which provides for up to 80 hours of paid sick time to employees who are unable to work due to the effects of COVID-19.
  • And the Families First Act makes it unlawful under the Act for any employer to “discharge, discipline, or in any other manner discriminate against any employee” who exercises his right to “take leave in accordance with this Act.” Violations are subject to the penalties described in sections 16 and 17 of the FLSA (29 U.S.C. § 216, 217).

This lawsuit was filed at the end of August 2020 and Defendant answered the complaint a few weeks later. So both litigants likely have a long, expensive road of litigation ahead of them before a final decision is reached.

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.

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.