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COVID-19 Employment Law Update

Return to Work After Close Contact

The United States Centers for Disease Control and Prevention (“CDC”) recently updated its guidance regarding quarantine periods after a close contact with someone known or suspected of having COVID-19. The CDC previously recommended that those with a close contact exposure quarantine (and either miss work or work remotely) for at least 14 days after exposure.

The CDC now takes a two-pronged approach: someone who has a close contact with a known or suspected case of COVID-19 should quarantine for 10 days if they are not tested for COVID-19 or if they receive a positive test result or for 7 days after receiving a negative test result. You can find the updated CDC guidance here.

The MiOSHA Emergency Rules (available here) require Michigan’s workers to remain off of work until they are no longer considered infectious according to the latest guidance from the CDC. However, this CDC change puts the CDC recommendations out of step with the Michigan Legislature’s mandate in PA 238 (available here). PA 238 was passed into law by the Michigan Legislature to fill some of the gaps left when the Governor’s COVID-19 Executive Orders were invalidated. PA 238 requires that Michiganders remain off work after a close contact exposure for either 14 days or until the suspected COVID-19 case receives a negative test indicating they were not infected at the time of the close contact. Because MiOSHA’s Emergency Rules are tied to the CDC (and not to PA 238), the MiOSHA Emergency Rules return to work provisions are in direct conflict with PA 238. MiOSHA has not yet clarified its position, but generally where an agency rule and a state statute conflict, the statute controls. Therefore, we recommend that instead of updating return to work rules to allow the 7-10 day return as indicated by the CDC, Michigan employers continue to require quarantine for either 14 days or until the close contact receives a test result indicating he/she did not have COVID-19 at the time of the close contact.

In many cases, Michigan employers drafted their COVID-19 Preparedness and Response Plans to reference CDC guidance for returning to work. That reference is no longer in line with Michigan law. You should consider whether it is time to review your COVID-19 Preparedness and Response Plan and revise it to reflect the this and other changes in the law.

Policies Prohibiting In-Person Work

In MiOSHA’s October 14 Emergency Rules, Rule 5(8) states that “The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” MiOSHA recently issued some clarification on what that requires of Michigan employers. Emergency Rule 5(8) requires a written policy stating that employees are not to work onsite if the work can feasible be done remotely. Importantly, MiOSHA is placing the burden on the employer to show that remote work is infeasible. The written policy must include the positions that report for in-person work and an explanation about why the employees must be physically present and reasons the work cannot be done remotely, to include “enough specificity to show this analysis has been performed.” The policy may be part of the COVID-19 Preparedness and Response Plan or a standalone policy.

This updated clarification requires employers to demonstrate that they have put some thought into remote versus in-person work requirements. MiOSHA does not appear to be mandating an exhaustive analysis of the problem. Instead, a good-faith effort to show that the employer has made a reasoned decision should suffice under this clarification. MiOSHA’s clarification is available here.

If you would like assistance in drafting a written policy complying with this guidance, or assistance in updating your COVID-19 Preparedness and Response Plan, please contact the employment law experts at FSBR.

Finally, as of December 8, the MiOSHA Emergency Rules remain in effect, and the Michigan Department of Health and Human Services Epidemic Order was reissued with only minor changes on December 7. Also on our radar: the federal Families First Coronavirus Response Act (“FFCRA”), which provides paid sick leave to employees impacted by COVID-19, is set to expire on December 31. We are closely watching the developments at the federal level and will provide updates as Congress’s plans to extend or replace the FFCRA take shape.

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