North America

Michigan recently announced two COVID-19 developments that will impact employers and their workplaces.  Most recently, the Michigan Department of Health and Human Services (MDHHS) issued new restrictions for business operations in the state that are set to take effect on November 18 and last through December 8, 2020 (the “Three Week Pause Order”).  The Three Week Pause Order followed an announcement late last week by the Michigan Occupational Safety and Health Administration (MIOSHA) of a State Emphasis Program (SEP) focused on in-door activities and venues, including office settings.  The Three Week Pause Order and SEP announcements also include an important reminder to employers of the potential liabilities and penalties if they violate the State’s COVID-19 safety requirements.

As the COVID-19 pandemic continues to affect workplaces throughout the world, employers are considering new ways to ensure a safe workplace when employees return to the office. Outside the US, employers must balance their duty of care to protect the health and safety of all their employees with safeguarding employees’ privacy and complying with data protection regulations. Many employers already have analyzed whether they may require or request employees to (i) submit to COVID-19 testing at the workplace, (ii) certify certain health information regarding exposure to COVID-19 and (iii) wear a face covering in the workplace. Another relatively recent development employers outside the US may wish to consider is whether they may require or request employees to download a COVID-19 contact tracing application to their smartphones to track employees’ movements and contacts to enable employers to alert employees if they have been exposed to a co-worker with COVID-19.

As COVID-19 cases once again surge across the country, Washington, D.C. employers must remember to provide both paid and unpaid leave under the new District of Columbia Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130) (the “Act”).  Although passed in July 2020, the Act formally became effective on October 9, 2020 and will remain in effect through the end of the declared COVID-19 public health emergency—currently December 31, 2021.  The law repeals the emergency laws that we previously blogged about, but carries over the additional obligations to provide employees with paid and unpaid leave for COVID-19-related reasons.  We have summarized both provisions below.

Part 9 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

If the Rules of the Road: Return to Work in the Time of COVID-19 series has given you any takeaways, it should be that it pays to be prepared, to be safe, and to anticipate workplace issues before they arise. This means taking stock of what has happened in the past year and what challenges lie ahead. There is almost nothing the pandemic has not affected in our lives, or in business and the workplace and the challenges have been daunting. Challenges have included, coping with illness, the stressors of new work arraignments, the impact of physical distancing, adjusting to caregiving responsibilities at home, and simply grappling with the unknowns of the pandemic. In short, it’s been a challenging year. As we turn the corner into 2021, it’s apparent that employers will continue to need to manage their workforces with an understanding of the complexities that the pandemic has thrust upon employees’ lives. The following short statements serve as a quick reminder of what employers should and should not do when returning employees safely to the workplace. If the statements seem familiar (dare we say intuitive), it’s because they are. You have seen them before. These maxims apply with equal force to the workplace today as they did before the pandemic. With all the preoccupying challenges presented by the pandemic, however, we offer these important reminders.

As the pandemic continues into 2021, many employers are contending with their workers’ significantly increased caregiving responsibilities.  Parents – many without viable day care or other childcare options – must try to balance work with the challenges of caring for their children and overseeing their education (and entertainment). Other employees find themselves at the forefront of caregiving for sick family members and for family members at high risk for serious illness, if they become infected by COVID-19.

October has brought a weekly flurry of changes to Michigan’s COVID-19 legal landscape. [1] On Thursday October 22, 2020, Governor Whitmer added to this recent activity by signing three bills into law that provide employers with significant liability protection and employees with job protections related to COVID-19.

Employer Protections: Liability Shield

Titled the “COVID-19 Response and Reopening Liability Assurance Act,” HB 6030 provides employers with immunity from liability for a “COVID-19 claim” as long as the employer acted in compliance with all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19. A “COVID-19 claim” is defined to include a tort claim or tort cause of action for damages, losses, indemnification, or other relief arising out of or in any way related to exposure or potential exposure to COVID-19 or to conduct intended to reduce the transmission of COVID-19. In addition, HB 6031 [2] amends the Michigan Occupational Safety and Health Act and affords liability protection to employers for an employee’s exposure to COVID-19, as long as the employer operated in compliance all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19.