Reopening Your Business

As of this writing, all of Michigan is subject to Governor Whitmer’s latest stay-home order, which is set to expire on May 28, 2020. The latest order has given some businesses the go-ahead to resume operations, while others eagerly await their turn. Here are some important tips and recommendations for all businesses to consider as they resume operations or prepare to do so.

1. Review CDC Guidance and State of Michigan Recommendations

The Centers for Disease Control and Prevention (CDC) has issued and continued to update interim guidance for businesses to plan, prepare and respond to COVID-19. The State of Michigan also has a helpful Frequently Asked Questions page regarding COVID-19, which can be filtered by categories, such as “Employers.”

2. Prepare and Implement a Preparedness and Response Plan

Governor Whitmer’s latest stay-home order requires businesses that are open for in-person work to:

Develop a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration [OSHA]…Such plan must be available at company headquarters or the worksite.

All businesses should now take the time to create a plan consistent with OSHA’s guidance. Businesses that have resumed in-person are required to, and those that have not yet resumed would be wise to have a plan ready to go when the time comes.

3. Ensure a Discrimination Free Workplace

Michigan Exec Order No 2020-36, which is effective until the end of the declared states of emergency and disaster, provides for certain protections against workplace discrimination by prohibiting employers from “discharging, disciplining, or otherwise retaliating against” employees who stay at home when they are at particular risk of infecting others. Employers should be familiar with the particulars of this order.

Employers should also be aware of the discrimination protections under the Families First Coronavirus Response Act (FFCRA). Employers may not fire, discipline, or otherwise discriminate against an employee who takes paid sick leave or expanded family and medical leave under the FFCRA.

4. Comply with Employee Leave Requirements under the FFCRA

Employers must post a notice of the requirements described within the FFCRA. See the employee rights poster related to the FFCRA provided on the U.S. Department of Labor’s website. The FFCRA addresses employee leaves due to COVID-19, including for employees who need to care for a child whose school, day care, or childcare provider is unavailable. It also addresses qualifications for paid leave. The FFCRA is set to expire at the end of 2020. The U.S. Department of Labor’s Q&As is an excellent resource for questions regarding the FFCRA.

5. Follow Americans with Disabilities Act (ADA) Guidance

The Equal Employment Opportunity Commission has issued guidance For ADA-covered employers, generally, employers with fifteen (15) or more employees, called What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other Coronavirus. This guidance provides that ADA and Rehabilitation Act rules continue to apply during pandemics, but do not prevent employers from following the guidelines and suggestions made by the CDC or state and local public health authorities about the steps employers should take regarding the Coronavirus.

Additionally, ADA-covered employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as they do so for all employees entering the same type of job. An ADA-covered employer may also withdraw a job offer of any applicant who has COVID-19 or the symptoms of it.

6. Understand Unemployment Benefit Changes

Mich Exec Order No 2020-76, which is effective until the end of the declared states of emergency and disaster, addresses the temporary expansion of unemployment benefits. The order temporarily suspends strict compliance with certain sections of the Michigan Employment Security Act. Employees are considered to have “left work involuntarily for medical reasons” and are therefore eligible for unemployment benefits if they have to stop working for certain enumerated reasons due to COVID-19. An individual “may be deemed laid off if that individual became unemployed” for any of those reasons. Additionally, “an individual who is on a leave of absence for any of those reasons” may be considered to be unemployed.

Most importantly for employers, the order provides that “[a]ny benefit paid to a claimant who is laid off or placed on leave of absence must not be charged to the account of the employer or employers that otherwise would have been charged but instead must be charged to the Unemployment Insurance Agency’s non-chargeable account.” However, if employers are deemed to have misclassified workers, these benefits will not be available.