COVID -19 EMPLOYMENT LAW INSIGHTS AND RESOURCES

The COVID-19 Outbreak is presenting many challenges for the Michigan workplace.  Yet the law and circumstances are changing almost daily.  We are regularly monitoring and updating workplace rights resources we have found helpful.  We are updating this material as it becomes available.  Keep in mind this is not intended to be legal advice.  Legal rights in any individual case need to be evaluated in consultation with an attorney.

UNEMPLOYMENT BENEFITS AND COVID-19

As of April 13, 2020, the Michigan Unemployment Insurance Agency has begun accepting applications for the broadest category of potential recipients under federal law reforms related to the COVID-19 pandemic.

Under the various federal reforms, most Michigan workers who face job loss as a result of the COVID-19 pandemic should be eligible to receive unemployment benefits including a $600 per week federal supplement on top of basic benefits regularly provided by the state system. Workers defined as “self-employed” or otherwise defined as independent contractors will be newly able to claim unemployment benefits as a result of the federal disaster relief package known as the CARES Act.  And workers who have recently run out of benefit weeks will be able to re-qualify for additional benefits weeks up to 39 weeks of total benefits.

Operating under the current state of emergency and the Michigan Governor’s Executive Orders, unemployment benefits are available to individuals “considered to have left work involuntarily for medical reasons” if that individual leaves work for any of the following reasons:

  1. The individual is under self-isolation or self-quarantine in response to elevated risk from COVID-19 due to being immuno-compromised.
  2. The individual has displayed at least one of the principal symptoms of COVID-19, which are a fever, atypical cough, and atypical shortness of breath.
  3. The individual has had contact in the last 14 days with someone with a confirmed diagnosis of COVID-19. Contact for the purposes of healthcare exposures is defined as follows: a) being within approximately 6 feet (2 meters) of a person with COVID-19 for a prolonged period of time, without appropriate personal protective equipment consistent with Department of Health and Human Services recommendations; or b) having unprotected direct contact with infectious secretions or excretions of the patient (e.g., being coughed on, touching used tissues with a bare hand).
  4. The individual is required to care for someone with a confirmed diagnosis of COVID-19.
  5. The individual has a family care responsibility as a result of a government directive.

Benefits and eligibility criteria under the Governor’s Order are applied retroactively to March 16, 2020 under the Governor’s order.

An expanded discussion of COVID-19 Unemployment Benefits and Resources is available here.

PAID LEAVE AND COVID-19

The Families-First Coronavirus Response Act (FFCRA) created new paid leave benefits for many workers of companies employing 500 employees or less. In certain qualifying circumstances, these benefits can be an essential lifeline to support payroll and protect return-to-work rights for workers affected by the Coronavirus Outbreak.  The US Department of Labor has many resources on FFCRA coverage,including workplace notices that covered employers are required to post.

MICHIGAN GOVERNOR EXECUTIVE ORDERS

Michigan Governor Whitmer has responded to the state of emergency by issuing many orders with the effect of law. Michigan Governor Whitmer maintains a COVID -19 website with regular updates. A complete list of Executive Orders Issued by Governor Whitmer is available here.  The impact of the outbreak and sheltering measures can be followed on Michigan Coronavirus Map and Case Count.

Governor Whitmer’s original “Stay Home, Stay Safe” Order outlined essential worker protections and the types of retail establishments that should be required to close, while others may be opened to provide basic health and safety.

As of April 24, 2020,  Executive Order 2020-59 extended the stay home period through May 15, but allows some additional workers to go back on the job, such as and loosens some other restrictions.

  • Landscapers, lawn-service companies, nurseries may return to work  – subject to social distancing
  • Retailers that do not sell necessary supplies may reopen for curbside pickup and delivery
  • Closed areas of retail stores such as garden centers and paint departments may reopen
  • Motorized boating and golf are permitted, consistent with sound social distancing
  • Travel between residences is permitted, although strongly discouraged

In addition, the order requires people to wear face coverings in enclosed public spaces, and employers should provide at least a cloth face covering to their employees. A Q&A page for EO 2020-59 is available here.

Under the “Safe Start” Executive Order 2020-70,  additional workers are cleared to return to work effective at 12:01 am on May 7, 2020 subject to the enhanced social distancing rules:

  • workers who perform work that is traditionally and primarily performed outdoors, including but not limited to forestry workers, outdoor power equipment technicians, parking enforcement workers, and similar workers.
  • workers in the construction industry, including workers in the building trades (plumbers, electricians, HVAC technicians, and similar workers),
  • workers in the real-estate industry, including agents, appraisers, brokers, inspectors, surveyors, and registers of deeds,
  • workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections

EO 2020-70 also prescribe certain minimum safety guidelines and precautions for workers who performed resumed activities.  As with prior orders, the EO makes violations a misdemeanor under Michigan law.

ADA ACCOMMODATIONS, FAMILY MEDICAL LEAVE RIGHTS AND COVID-19

Workers who are aren’t covered by the FFCRA paid leave benefits may still be legally entitled to take unpaid medical leave or seek reasonable accommodations.   According to EEOC guidance: The ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three major ways. First, the ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

WORKPLACE SAFETY AND COVID-19

Many Michigan workers have been asked to report to work, either because their employer has determined they are critical infrastructure or other essential employees.  These include health care workers and first responders.  For those that are out in the public during the outbreak effective workplace safety is the highest priority.   Discrimination or retaliation for raising workplace safety concerns is illegal.

As additional reopened businesses consider calling workers back, OSHA has also developed Interim General Guidance on Protecting Workers from COVID-19  as well as specific guidance for industry specific worker groups and their employers:

NELP Worker Safety During Covid-19 Factsheet from the National Employment Law Project.  NELP has been critical of the federal OSHA response and provides link to union and other worker safety advocates looking out for workers during the crisis.

HEALTHCARE SPECIFIC SAFETY AND COVID-19

OSHA has developed Interim General Guidance on Protecting Workers from COVID-19  as well as specific guidance for industry specific worker groups and their employers:

On May 3, 2020, the Michigan Department of Health and Human Safety sent Guidance to all licensed practitioners in Michigan.

Executive Order 2020-72 prescribes temporary restrictions on entry into health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities

Executive Order 2020-50 addresses Health and Safety of Residents and Employees of Long Term Care Facilities

COVID-19 FRAUD AND WHISTLEBLOWERS

WAGE PAYMENT LAWS AND COVID-19

Workplace disruptions related to COVID-19 are raising some questions about fair pay for work performed.  Generally speaking, employees who are laid off are still entitled to be paid for hours and days actually worked.  Asking employees to “volunteer” is usually not allowed. Time spent passing medical clearance checks at work may be compensable.

MICHIGAN EDUCATION AND COVID-19

Public School and Higher Education have been closed for the remainder of the academic year. Michigan Department of Education Resources are available here

IMMIGRANT RIGHTS AND COVID-19

WORKERS COMPENSATION AND COVID-19

DOMESTIC VIOLENCE AND COVID-19

MORE COVID-19 RESOURCES