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As Employers Eye Re-opening, Be Aware of Potential Legal Issues

May 1, 2020

By Michael Burns, courtesy of SBAM Approved Partner ASE

Employers are making plans to re-open in the near future. When employers do, they will need to act deliberately to avoid compliance and legal risks.

Let’s start with the obvious, employers are required by OSHA to maintain a safe working environment. This means complying with safety requirements and guidelines. Most recently Michigan’s Governor Whitmer continued the suspension of activities order through May 15th (EO 2020-59 issued 4/24/20). Essential businesses, where employers are allowed to provide services or products, are required to follow the guidelines set forth EO 2020-59.

EO 2020-59 Section 11

Businesses, operations, and government agencies that remain open for in-person work must adhere to sound social distancing practices and measures, which include but are not limited to:

  1. Developing 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. Such plan must be available at company headquarters or the worksite.

  2. Restricting the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.

  3. Promoting remote work to the fullest extent possible.

  4. Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.

  5. Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.

  6. Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.

  7. Any other social distancing practices and mitigation measures recommended by the CDC.

  8. For businesses and operations who’s in-person work is permitted under sections 10(c) through 10(e) of this order, the following additional measures must also be taken:

EO 2020-59 Section 15

Any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.

  • All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.

  • Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.

  • The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to persons who wear a mask under this order.

Please note the last protection in Section 15 of the Executive Order. Employers need to watch out for potential discriminatory bias in bringing back (rehiring) employees. 

If an employer shows undue concern for older workers’ health and brings back younger workers first, an employer risks an age bias claim. Prevent a pregnant employee from returning right away and the employer could walk right into a pregnancy discrimination claim.

Make sure the re-employment process is not biased. 

Follow appropriate guidance from the Centers for Disease Control (CDC), the Occupational Safety and Health Administration (OHSA), as well as state and local authorities.

Falling short in the workplace safety category could get the employer a lawsuit but will more likely result in a complaint made to MIOSHA for failing to maintain a safe workplace. Employers are advised to have safety measures in place before starting the rehire process.

If health screening measures are used, make sure the proper diagnostic practices are in place. Regulatory processes require proper testing be conducted. Information derived from simple temperature taking or questionnaires is required to be handled confidentially. Do not seek information that may not be requested. For more information on this see OSHA guidance.

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