As the State of Michigan gradually begins lifting closure orders on “nonessential” businesses in various cities and municipalities, employers are cautiously reopening and welcoming employees back to work. Below addresses some of the more important concerns or issues that may arise for employers during this process:

1. Ensure that your “Return to Work” policies and procedures are not considered discriminatory or retaliatory.

Employers should record the legitimate reasons for instructing employees to: physically report back at work, undergo COVID-19 testing, and/or temperature readings. Any such protocols should be implemented widespread, without exceptions and in a manner consistent with the guidelines prescribed by the state and federal government agencies.

Employers must be particularly mindful if they are basing any employment decisions on an employee being deemed “high risk” for COVID-19. Per the EEOC, if an employee poses a “direct threat” for COVID-19 contraction, then under the certain circumstance an employer may deny his or her return to work. For substantive guidance, see the EEOC What You Should Know About COVID-19, specifically question(s) G.3 - G.5.

2. Consider the Families First Coronavirus Response Act (FFCRA) when addressing employees with children whose schools are closed or for whom childcare is not available due to COVID-19.

Employers should follow best practices with FFCRA, which includes: (a) updating employment policies and procedures to implement FFCRA and make plans for additional changes as rules and regulations are being implemented; (b) training owners, officers, supervisors and managers on how to implement updated employment policies and procedures; and (c) implement FFCRA (and policies and procedures) fairly and uniformly. For substantive guidance, see the Department of Labor’s Questions and Answers. Specifically:

Entitlement to FFCRA leave, see question 7.
Childcare issues, see question 10.
Documentation that employers must maintain, see questions 15-16.
Teleworking, see questions 17-22.
Job protection for employees currently on FFCRA leave, see question 43.
The exemption for small business with less than 50 employees, see questions 4, 58 and 59.

3. Employee does not want to return to work physically in the office.

Employers should promote remote work to the fullest extent possible, but not all positions can accommodate this option. Since Michigan is an “at-will” state, an employer has the right to take an adverse employment action that is not discriminatory or retaliatory. In many cases, if an employee refuses to return to work, especially after the employer has taken reasonable steps to ensure the safety of employees, it is a basis for discipline up to and including termination. The employer should also ensure that it complies with all aspects of the employer’s policies and procedures regarding disciplinary actions and termination.

Exception(s) to the above may include:

If the employee is/was on FFCRA leave or standard Family and Medical Leave Act (FMLA) leave, there is a job protection component that needs to be considered.
Additionally, the employer cannot reduce the employee’s FFCRA leave or standard FMLA leave short.
Individuals who test positive for COVID-19 or display its principal symptoms (or had close contact with people who have).
If the employee is disabled (permanently or temporarily) and is entitled to reasonable accommodations, then reasonable accommodations must be offered which may include offering the ability to telework or flexible schedules.

4. Take reasonable steps to ensure the safety of your employees.

Employers need to take reasonable steps to ensure the safety of their employees. For safety guidance on preparation for returning to work, employers should look to the CDC Guidelines and the latest applicable Michigan Executive Order. Additionally, conspicuous signage should be installed on the premises with clear protocols for employees and customers to follow such as hand-washing, face coverings, and social-distancing.

In addition to the CDC, OSHA has also published guidance on preparing work places for COVID-19. Additionally, these OSHA guidelines will assist with complying Michigan’s requirement that employers have an implemented COVID-19 preparedness and response plan. Specifically, employers should pay attention to the section titled “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure.” A policy can be

5. Comply with Michigan and the EEOC’s guidance regarding testing, maintaining confidentiality and reasonable accommodations.

Employers should review the EEOC What You Should Know About COVID-19. Some relevant sections of the EEOC’s guidance include: (a) Information Employers can request from employees [Questions A. through A.2]; (b) Measuring Employee’s Temperature [Question A.3]; (c) Testing employees for COVID-19 prior to return to work [Question A.6]; (d) Maintaining confidentiality of medical information obtained [Questions B.1 through B.3].

Currently, some of the requirements for Michigan businesses that are open for in-person work include: (a) provide and require all employees to wear face coverings (if medically tolerable) and other applicable PPE; (b) adopt social distancing practices; (c) daily screening protocol for workers/visitors in certain industries; and (d) restrict the number of workers/visitors present on the premises to no more than is strictly necessary.

With respect to reasonable accommodations, private employers, state and local government employers, employment agencies, labor organizations, and joint labor-management committees must comply with the reasonable accommodation requirements of the ADA and Michigan Persons with Disabilities Civil Rights Act (PDCRA).

Upon request, employees with a disability are entitled (or likely entitled) to reasonable accommodations under the ADA and PDCRA. Additionally, a disability includes a medical condition that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee contracts COVID-19.

Some examples of reasonable accommodations may include:

Changing job tasks and/or schedule to ensure less interaction/traffic.
Placing individual in an office or workspace with less traffic.
Providing or adjust a product or equipment (e.g. plexiglass barrier, etc.), or software/hardware for remote work.

Note: An employer does not have to create a new position, no other employees need be transferred or terminated in order to make a position vacant for the purpose of reassignment, and the individual with a disability should be qualified for the new position.

6. Conclusion

Businesses need to reopen and people safely need to return back to work. This, no one disputes. Employers just need to be aware of some potential issues and make sure they are addressing them when reopening. Additionally, make sure to check your local municipality about its reopening requirements and/or guidance (e.g. City of Detroit, Genesee County, Macomb County, Oakland County, Washtenaw County, and Wayne County).

However, each business is different and the above information is: not exhaustive, subject to change, and not legal advice, but for educational purposes, only. Therefore, you should seek legal counsel from an employment lawyer before making any decisions. A|Squared Legal Group is here to help, so please contact us.