WE CAN OPEN! NOW WHAT?
Michigan employers that are allowed to reopen their businesses after a COVID-19 shutdown face many issues in re-introducing their employees to the workplace. The following major issues should be on all employer’s radar during the call back process to ensure successful staffing.
Compliance with Executive Order 2020-91
As explained in Five Steps to Resume Michigan Business Operations, the Executive Order 2020-91 provides that any business violating any of the rules will be deemed to have failed to provide a safe place of employment that is free from recognized hazards that are causing or likely to cause, death or serious physical harm to an employee within the meaning of the Michigan Occupational Safety and Health Act. This is a very serious mandate. Failure to provide a safe place of employment may result in harm to an employee and open the door to employees refusing to report to work as well as potential fines and penalties imposed by the State. This potential employer liability makes it imperative that all of the steps in the Executive Order be followed.
Compliance with Wage and Hour Laws
The Executive Order requires that employees be screened for COVID-19 symptoms or exposure to COVID-19 upon entering the workplace. Depending on the size of the work force and the nature of the screening (which varies according to the type of workplace), this may require employees to wait a considerable amount of time before punching in and actually starting work. Also, depending upon the industry, employees may be required to put on varying degrees of personal protective equipment (“PPE”) before starting work. The time taken for testing and donning of PPE may result in considerable time being spent by the employee for which they may at some point request compensation. While the Federal Portal-to-Portal Act requires that employees be paid only for tasks that are integral and indispensable to an employee’s main duties, Michigan has not specifically adopted that Act’s standards and so there is the possibility that the time spent engaged in these activities could be compensable. This is more likely than for circumstances like standard employee security checks because the activities are required by the Executive Order and thus are arguably an “integral and indispensable” part of the employees’ “principal activities. In other words, the employees cannot work without engaging in these activities and thus arguably should be compensated for them. The cost of getting it wrong is a potential class-action suit seeking payment for the unpaid time plus liquidated damages and attorney fees. To avoid this potential risk, Employers need to either pay for the activities or do everything possible to minimize the time spent in these activities by, for example, staggering arrival times to shorten screening lines or requiring the PPE to be worn from home.
Another Wage and Hour risk is that due to minimized on-site staffing required by the Executive Order, salaried employees who are categorized as exempt for overtime purposes may be tasked with routine production duties that do not qualify under the various exempt categories – professional, administrative, executive and outside sales. If they spend too much time doing non-exempt work they may be entitled to overtime for hours in excess of 40 in a week. Furthermore, the salaried exempt status could also be imperiled if the employer tries to save money by paying only for time worked by the exempt employee. Again, the cost of mishandling the assignment of duties or the payment of wages to the exempt employees could be significant if overtime hours are worked to make up for short staffing.
Compliance with Civil Rights and Disability Laws
Because of the significant threat posed by the COVID-19 virus, employers may be hesitant to call back employees known to be in high-risk categories. Pursuant to EEOC guidance issued on May 7, efforts to protect these employees from the virus may be at the expense of a claim of discrimination. The guidance clarifies that the Americans with Disabilities Act does not allow employees to be barred from going back to work solely because they are over the age of 65 or have medical conditions like serious heart problems, diabetes, asthma and severe obesity that have been identified by the Centers for Disease Control and Prevention as placing people at greater risk of becoming severely ill if they become infected with COVID-19. The guidance goes on to require a “direct threat analysis” to determine if an at-risk worker’s own health is imperiled by having them return, as well as “an individualized assessment” to figure out if there is a reasonable accommodation that can mitigate the risk. The bottom line is that as an initial matter employers need to treat all of the employees subject to recall the same regardless of their medical condition and then deal with medical issues the same as in any ADA situation, with the need for accommodation by the employee measured against undue hardship on the employer of granting the accommodation.
In addition to not prioritizing call-backs based on the avoidance of high-risk categories, employers need to always remain mindful during the call-back process of the need to honor the various anti-discrimination laws that prohibit actions based on age, race, ethnicity, etc. Accordingly, care must be taken to ensure that no protected group is or is not called back to the exclusion of others.
Compliance with Executive Order 2020-36
Some employers have not remained in close contact with employees who were furloughed due to the business closing operations or who are still on the payroll pursuant to a Paycheck Protection Loan but not actually working. It is likely that some employees may resist a return to work on the alleged basis that they have recently tested positive for COVID-19, they display one or more of the principal symptoms of the virus, they have had close contact with someone diagnosed with COVID-19 or someone displaying the principal symptoms of the virus. Executive Order 2020-36 requires these employees to stay home for designated periods and prohibits an employer from discharging, disciplining or otherwise retaliating against these employees during the required stay at home period even if they do not have documentation to substantiate the basis of their decision to stay home. Accordingly, employers need to carefully weigh their reaction to employees who seek extra time off based on their own or someone else’s medical condition.
Enforcing a Return to Work
A major obstacle facing Michigan employers is that many members of their work force are making more money on unemployment than they will make upon a return to work. As a result, there may be resistance by these employees to return to the workplace leaving the employer short-staffed just when it most needs to be in business. To avoid this unfortunate circumstance, employers should call the employees back in writing noting that work is available to them at their former rate of pay and that if they refuse to return the employer will challenge any on-going claim to unemployment benefits. Based on current guidance it appears that such challenges will be successful and the employee will be both without a job and without unemployment.
As businesses strive to return to normal, we anticipate countless other employment law issues including how to manage PTO time for the remainder of the year, how to handle an employee’s refusal to work due to a COVID-19 exposure on site, how to deal with affirmative answers due to COVID-19 health screening, how to deal with employees that refuse to wear PPE, and how to handle Intermittent Leave Requests for child care. The Employment Law team at Rhoades McKee will continue to assist employers to navigate all of these legal issues emerging from the COVID-19 Pandemic.