As the COVID-19 pandemic continues into the winter months, the legal landscape for employers trying to navigate COVID related requirements grows ever more complicated and challenging. Employers are faced with a long list of COVID related issues requiring their action. How should the employer screen employees? What happens when an employee tests positive after being present in the workplace? When must employees quarantine if they have had close contact with a person who has tested positive and for how long? What is close contact?
Due to a patchwork of federal, state and local laws and guidelines, the answers to these and other COVID related employer questions are location specific. CDC guidelines provide some answers, but the degree to which the guidelines are binding varies from jurisdiction to jurisdiction. To complicate matters, many states, counties, state and local health departments and other agencies have implemented various laws, executive orders, rules and non-binding guidance. All of this is constantly changing for a variety of reasons including the fluctuating spread of COVID-19, evolving scientific thinking, and legal challenges.
In Michigan, for instance, after a Michigan Supreme Court decision invalidated executive orders, the Governor signed new legislation on October 22, 2020 requiring employees to remain home if diagnosed with COVID-19, experiencing COVID-19 symptoms or in close contact with a person who has been diagnosed with COVID-19. In addition to the new law, the Michigan Occupational Safety and Health Administration (MIOSHA) has issued COVID-related rules requiring employers to implement a plan that is consistent with CDC Guidelines, which do not align precisely with the new Michigan statute.
As cases increase across the country, many employers are facing staffing constraints due to quarantine requirements for employees who test positive, or are in “close contact” with a person who tests positive. These attendance challenges will only increase as we enter cold and flu season, with similar symptoms, and the federal government likely reenacts supplemental unemployment compensation. In such circumstances, it is important to be precise regarding the circumstances, and amount of time, when an employee must remain off work. Below, we have analyzed several potential employer questions under Michigan law.
In Michigan, no. While under the prior Michigan executive orders and CDC guidelines, a testing return to work strategy was an option, under the new Michigan statute, a negative test will not return the employee to work sooner. Under the Act, employees who have been in close contact with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19 may only return to work under the following circumstances:
The statute does not provide for any other circumstances under which the exposed employee can return to work. It specifically does not include a shortening of the required time if the employee tests negative for COVID-19.
In addition, employers should be aware that the CDC has changed its guidelines and no longer supports accelerating an employee’s return to work through testing. Under the current guidelines, generally “a testing strategy is no longer recommended…”
While the new Michigan legislation that sets requirements for employers does not refer to CDC guidance, MIOSHA rules do. The rule states:
“The employer shall develop and implement a written COVID-19 preparedness and response plan, consistent with the current guidance for COVID-19 from the U.S. Centers for Disease Control and Prevention (CDC) and recommendations in ‘Guidance on Preparing Workplaces for COVID-19’ developed by the Occupational Health and Safety Administration (OSHA).”
Because the MIOSHA rule states that employers shall develop a plan that is consistent with CDC guidance, Michigan employers are required to follow CDC guidance. If they fail to do so, Michigan employers risk losing the indemnity provided under Michigan law connected to compliance.
The CDC guidelines definition of “close contact” states that the definition of close contact is still applicable even if the employee is wearing a mask.
As the pandemic continues, employers will likely face these and other similar questions with increasing frequency. Employers should tread carefully and consult with legal counsel due to the complicated issues that arise and detailed analysis of intersecting legal obligations that is required.
Companies in all sectors of the economy continue to be impacted by COVID-19. Foley is here to help our clients effectively address the short- and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to deliver timely perspectives on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. Click here to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, click here and submit the form.