Top Legal Questions/Concerns Michigan Employers are Asking Regarding COVID-19

The FFCRA regulations state that employees can utilize leave under the FFCRA to care for a son or daughter “only if no other suitable person is available to care for the son or daughter” during the leave.  Based on that language, there is room for an employer to discuss possible alternative childcare options.  From a practical standpoint, however, it might not be productive to engage in a debate with employees about what care options are appropriate for their children.  Likely for that reason, we do not see many employers pursuing that requirement.

All businesses with in-person operations must Develop a COVID-19 preparedness and response plan, consistent with OSHA’s Guidance on Preparing Workplaces for COVID-19. By June 1, 2020, or within two weeks of resuming in-person activities, whichever is later, a business’s or operation’s plan must be made readily available to employees, labor unions, and customers, whether via website, internal network, or by hard copy.

The requirement for all businesses with in-person operations is to conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19 and maintain a record of that screening. It is not entirely clear whether or not MIOSHA would accept the posting as a “questionnaire” as compliant with that requirement. We think that the fact that it does not ask questions or require employees to provide answers to those questions to a company representative would likely be a problem. This business might explore the various phone app options, such as Spectrum Health’s symptom checker app, in lieu of the sign.

The employee would likely be entitled to up to 80 hours of Emergency Paid Sick Leave under the FFCRA.  After that, he/she could be required to use PTO or unpaid time off.

So long as there is still at stay-at-home order in place, businesses requiring employees to report to work must designate those employees as (1) critical infrastructure workers, (2) necessary to conduct basic operations or (3) necessary to perform resumed activities. Previous Executive Orders required a more formal written notice, but the most recent stay-at-home order (Executive Order 92) just uses the term “designate.”  I would suggest a simple written notification (letter, email, text) informing employees that they have been designated to work and under which of the above categories.

Time under the FFCRA is protected, so businesses would want to deny the bonus to employees who have not been working for any reasons, not just those who have taken time off under the FFCRA.

Executive Order states only that the daily screening “covers symptoms.”  It does not say what the term “symptoms” means.  We recommend following the symptoms listed in the CDC’s site as they are the most up to date and likely provide the best preventative protection for employees.