The Sophisticated Employer Blog

Just when you think you have an understanding of the new federal laws and the executive orders coming out of Lansing and various counties, there is a twist. Let’s highlight some of the changes and see where we are today. I say today, because tomorrow may bring more change.

Michigan Executive Orders

To date, there have been several dozen executive orders issued by Michigan Gov. Gretchen Whitmer. Some have been supersede by others. All can be found on the State of Michigan website.

The three executive orders that more specifically affect employers are explained immediately below. All others still in existence are in the detailed sections below and should be reviewed to determine whether any affect your industry.

EO 2020-24 – Enhanced benefits for unemployment compensation. The order grants more time for the individual to file, suspends strict compliance with “shared-work” plans, provides benefits to individuals who leave work for various reasons related to the virus, suspends “available and seeking work requirements” and charges benefits to the state agency’s “non-chargeable” account.

EO 2020-36 – Protects workers who stay home because they or a close contact is sick, applies aspects/protections of the Michigan’s Paid Medical Leave Act (does not add any additional pay requirements), and states that employees should stay home if:

• They have tested positive for or have symptoms of COVID-19 until (a) 3-days have passed since their symptoms have resolved, and (b) 7-days since symptoms first appeared or they were swabbed for the positive test. If the employee tests negative, these rules no longer apply.

• A person the employee has had close contact with (i.e., being within 6’ of someone for a prolonged period of time) tests positive or displays symptoms of the virus until: 14-days have passed since the employee has had close contact with that individual or that person receives a negative test result. This rule does not apply to healthcare professionals, workers at a healthcare facility, first responders, child protective service employees, and workers at child caring institutions or correctional facilities. Before determining that an employee is exempt, employers should seek legal advice as specific definitions apply.

EO 2020-42 – Suspends activities that are not necessary to sustain or protect life. Sometimes referred to as the “shelter in place” order, it requires individuals to stay at home or at their place of residence and prohibits gatherings of individuals who are not part of a single household. Individuals are only allowed to leave home if they practice social distancing.

Employers cannot permit their workers to leave their homes to conduct business unless the workers are necessary to sustain or protect life (“critical infrastructure workers”), or are designated workers necessary to allow the business to conduct minimum basic operations (i.e., workers who in person presence is “strictly necessary” to maintain the value of inventory and equipment, care for animals, ensure security, process transactions such as payroll or facilitate the work of others remotely). All workers are required to practice social distancing.

Workers in healthcare and public health, who perform necessary government activities or are involved in such industries as food and agriculture, energy, water/wastewater, transportation/logistics, public works, communications/information technology (including news media), critical manufacturing, hazardous materials, financial services, insurance industry, labor unions, laundry mats and dry cleaners, chemical supply chains and safety, defense industry are also permitted to leave home to work.

Retail stores are also closed unless they sell groceries, medical supplies, products necessary to maintain the safety, sanitation and basic operation of residences, pet supplies, auto supplies/repair facilities, hardware stores and home appliance retailers.

Stores with less than 50,000 square feet have to limit people to 25% of the total occupancy rates established by the fire marshal and establish lines with social distancing. They are encouraged to have curbside pickup and other alternatives that allow patrons to wait in their cars until summoned by text or phone call.

Stores with more than 50,000 square feet must close off areas having carpet, flooring, furniture, garden centers, plant nurseries and paint and limit customers in store to four people per 1,000 square feet (excluding those areas closed). Such stores must also reserve at least two hours a week for those who are vulnerable (over 60, pregnant or underlying medical conditions). These stores must also now stop advertising goods that are not groceries, medical supplies or necessary to maintain the safety, sanitation and basic operations of residences.

Individuals are permitted to leave home to engage in outdoor physical activity, to perform tasks necessary to the health and safety of their family or household members (including pets) (such as purchase food, medications, gasoline, have vehicle repaired, etc.), care for minors, elderly, persons with disabilities or pets, volunteers at a nonprofit that provides food, shelter or other necessities, attend legal proceedings, transport children pursuant to a custody order, etc. Even travel between two residents within Michigan is prohibited and attendance at a funeral is limited to 10 people.

The order must be broadly construed and there is significant guidance following this order on the state’s website. It is discussed here because of its affect on employers and businesses in general.

Michigan’s Workers’ Disability Compensation Agency: “Emergency Rules”

Effective March 30 (and for the next six months), it is a violation of the Act (and subject to the penalties in Section 631, i.e., insurance carrier’s license to sell in the state may be revoked or employer may lose right to self-insure) to deny a first response employee’s claim if that employee is diagnosed with COVID-19 (whether by physician or by test) unless the denial is based on specific facts demonstrating the employee was not exposed at work.

“First response employee” includes a person working “in ambulance operations and advanced mobile emergency care services, county medical care facilities, emergency services, emergency medical services, homes for the aged, hospices, hospitals, … nursing homes, … home health agency … visiting nurse association”, or “working as a physician, physician assistant, nurse, emergency medical technician, paramedic … respiratory therapist … police officers, fire fighters, emergency medical technicians, on-call members of a fire department, volunteer civil defense workers, on-call members of a life support agency … [or] of an emergency rescue team, … state police …officer of the motor carrier enforcement division …state correctional officer or local corrections officer.

Wayne County Emergency Health Department Order (20-02)

Effective March 26, 2020 (until the threat of COVID-19 is no longer present), non-childcare business and entities in Wayne County that remain open under the Governor’s Executive Orders must implement a daily screening procedure for all staff entering the worksite asking:

• If they have a fever, cough, shortness of breath, sore throat, or diarrhea
• If in the last 14-days they have had close contact with someone diagnosed with COVID-19
• If they traveled by plane in last 14 days

It is also strongly recommended that employers use a touchless thermometer in lieu of the verbal confirmation.

If symptoms are present, the employee must be denied entry and should self-isolate for seven days since symptoms appeared and cannot return to work until three days without fever and improved respiratory.

If employee has had close contact with person diagnosed with the virus or traveled, they must be denied entry to the workplace for 14 days. This does not apply to hospitals, healthcare facilities, EMS or other organizations that have healthcare workers or providers or support staff involved in in patient care, and public health staffing actively involved in the COVID-19 response.

All businesses must also limit capacity of people allowed in and establish social distancing for customers, employees and others both inside and waiting outside the facility, including by the use of signs, contact barriers, building limits and specialized hours.

This order must be posted at all entrances so that it is visible to everyone entering the facility.

Oakland County Emergency Health Department Order (2020-07)

Oakland County has issued virtually the same order as the Wayne County order above with some minor differences, including who is exempt from the 14-day isolation order. The Oakland County order adds that, effective April 27, facial coverings are required for essential services workers who interact with the public face-to-face or have close contact with goods purchased by the public, including for example, grocery stores, restaurants, pharmacies, and places where social distancing is not possible.

The coverings must snugly cover the face and mouth and be secured with ties or ear loops. They can be homemade or store bought but should not be N95 rated masks or surgical masks because they are critical to health care workers and emergency responders.

This order remains in effect under the Governor’s EO 2020-42 expires and must be posted at entrances.

The Families First Coronavirus Response Act (FFCRA)

There are many separate acts contained in the FFCRA. The discussion below will focus on the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.

Both laws were signed into law by President Donald Trump on March 18 and were to take effect 15-days later, but instead became effective on April 1, on the 14th day, according to the U.S. Department of Labor. That was the first surprise and a sign of things to come.

The laws only apply to employers having fewer than 500 employees and to leaves taken through Dec. 31, 2020. There is a limited exception to both laws with specific criteria for small businesses having fewer than 50 employees, and there are payroll tax credits for employers that provide the leaves of absences. An employer subject to the leave laws explained below should have the poster posted by now.

Both leaves are only available if the employer has work available for the employee, and the employee is unable to work or work remotely for a qualifying reason. Intermittent leave is only available if the employer agrees to it.

Generally, employees of a “Healthcare Provider” (and any employee of an entity that contracts with a healthcare provider to provide services or maintain the facility’s operation) and emergency responders may be excluded from both leaves, but legal advice should be sought before doing so because there are complexities to this decision when both the federal laws and state executive orders are considered.

First, the laws were explained by the Department of Labor in a series of Frequently Asked Questions (FAQs). The latest one had 79 questions and answers and included some of its earlier guidance.

A few days later, on April 1, the DOL published a “temporary rule” without the usual period of public comment. Below is a quick look at both of the two new laws:

Emergency Family and Medical Leave Expansion Act

• Employees who have worked for the employer for at least 30 days prior to the requested leave (including time if employee began as a temporary staffing employee) are eligible for leave to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health crisis.

• Following 10 days of “unpaid” leave (which is actually paid under the Emergency Paid Sick Leave Act, below), qualifying employees are paid at 2/3 their regular pay rate, capped at $200 per day ($10,000 in the aggregate) for the number of hours the employee would have been scheduled to work. However, employers and employees may agree to allow the employee to supplement these payments with the employee’s unused paid time off.

• If there is other suitable childcare available (perhaps a spouse or grandparent), the leave is not available to the employee.

• This new leave counts against an employee’s 12-weeks of leave otherwise permitted under FMLA during the 12-month period and any FMLA leave the employee has already used lessens the amount of time the employee can now take off under the new law.

• Employers having fewer than 25 employees are not required to reinstate employees if certain conditions exist.

Emergency Paid Sick Leave Act

• Regardless of length of employment, full-time employees (who work 40 hours a week) may take up to 80 hours of paid sick leave according to the outline below.

Employees who take paid sick leave because: 

• They are subject to federal, state, or local quarantine or isolation order related to COVID-19;
• Have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; or
• Are experiencing symptoms of COVID-19 and are seeking medical diagnosis; 

will receive for each applicable hour, the greater of the employee’s regular rate of pay or the highest applicable minimum wage, to a maximum of $511 per day or $5,110 total over the entire paid sick leave period. 

If the sick leave is taken because the employee is: 

• Caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
• Caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19; or
• Because they are experiencing any other substantially similar condition that may arise as specified by HHS; 

the sick pay is paid at 2/3 of the employee’s regular rate of pay or the highest applicable minimum wage rate , with a maximum of $200 per day or $2,000 over the entire two-week period. 

The temporary rules provide significant guidance on how to calculate the amount of leave and pay for employees who are not full time (i.e., who work less than 40/hrs wk) or do not have a normal work schedule.
An employer is prohibited from requiring an employee to use other paid leave provided by the employer before using the paid sick time in this new law.

Federal Coronavirus Aid, Relief, and Economic Security Act (CARES)

This expansive $2 trillion relief package, with numerous sections spanning over 300 pages was signed by President Trump on March 27. The index itself is five pages long.

It provides assistance with unemployment benefits, payments to individuals/families, assistance to small businesses and airlines, access to healthcare for testing and treatment of COVID-19, grants to healthcare providers, retirement relief, etc. Given the breadth of this law, it cannot be addressed in any detail in this article.

Another stimulus bill is anticipated in the near future.

OSHA and COVID-19

Finally, don’t forget that employers are responsible for the health and safety of their workers under the Occupational Safety and Health Act (OSHA). COVID-19 exposure can be a reportable event. OSHA has provided guidance on its website.

Additional Michigan Executive Order Resources

EO 2020-04 – Declared a state of emergency as the two first presumptive cases of COVID-19 were found in Michigan. This is no longer in effect as EO 2020-33 has replaced it.

[EO 2020- 04 through 13 are no longer in effect.]

EO 2020-14 - Extended deadline to redeem property for nonpayment of property taxes.

[EO 2020-15 and 16 are no longer in effect.]

EO 2020–17 – Placed restrictions on non-essential medical and dental procedures.

[EO 2020-18 – is no longer in effect.]

[EO 2020-19 is no longer in effect.]

[EO 2020- 20 and 21 are no longer in effect.]

EO 2020-22 – Extended county canvass deadlines for the March presidential primary election.

[EO 2020-23 is no longer in effect.]

EO 2020-24 – Enhanced benefits for unemployment compensation (addressed in article above)

EO 2020-25 – Enhanced the operations of pharmacies and the filling of prescriptions.

EO 2020-26 – Extended the deadline for filing and payment of Michigan income taxes (state and city) (now July 15 for those that would have been due on April 15, and until July 31 for those due on April 30).

EO 2020-27 – Provided for absentee voting for May 5th elections.

EO 2020-28 – Required the restoration of water services to occupied residences.

EO 2020-29 – Provided temporary protocols at correctional facilities, including screening of individuals, issuing of PPE, stringent cleaning, safe distancing, minimizing contact, early release, etc.

EO 2020-30 – Relaxed restrictions/supervision related to delivery of medical services (i.e., allowing nurses, physician assistants, medical students to perform services that they otherwise would not be permitted to perform).

EO 2020-31 – Relieved standard vapor pressure restrictions on gasoline sales.

[EO 2020-32 – is no longer in effect.]

EO 2020-33 – Adds a state of disaster to the prior declaration of state of emergency.

EO 2020-34 – Suspended all in-person, non-essential veterinary services and allows for telemedicine.

EO 2020-35 – Suspended in person K-12 classes for remainder of school year and required the development of a plan to provide alternative modes of instruction, provided options for seniors and special education, etc.

EO 2020-36 – Protects workers who stay home because they or a close contact is sick (addressed in article above)

EO 2020-37 – Placed restrictions on entry into healthcare, residential care, congregate care and juvenile justice facilities and requires screening for those admitted.

EO 2020-38 – Extended FOIA deadlines.

EO 2020-39 – Changed staffing, credentialing and other requirements for emergency responders, vehicles (ambulances) and life support agencies.

EO 2020-40 – Relaxed certain standards for licensure of, and other requirements applicable to, motor carriers and commercial vehicles providing critical assistance related to the pandemic.

EO 2020-41 – Permits electronic signatures and records, remote notarization and witnessing of documents.

EO 2020-42 – Suspends activities not necessary to sustain or protect life (addressed in article above)

EO 2020-43 – Closed restaurants, food courts, cafes, coffeehouses, bars, taverns, brew pubs, breweries, wineries, hookah bars, cigar bars, theaters, indoor/outdoor performance venues, libraries, museums, gymnasiums, recreation centers, sports facilities, exercise facilities, casinos, racetracks, places of public amusement, etc., while permitting food and beverage carryout and delivery services, drive-through and walk-up services, provided there is social distancing. Specifically exempted grocery stores, convenience stores, drug stores, food pantries, healthcare, residential care, congregate care, juvenile care, crisis shelters, and food courts inside secure zones of airports.

EO 2020-44 – Relaxed state and local seasonal load restrictions for deliveries of medical supplies/equipment, food, and other deliveries necessary during the pandemic.

EO 2020-45 – Relaxed administrative rules for Michigan Employment Relations commission and the Unemployment Insurance Agency’s hearings, notices, etc.

EO 2020-46 – Created a spirits buyback program for restaurants and bars in the state for inventory ordered from the Liquor Control Commission before March 16 (cash advance in exchange for Commission holding title to the inventory, bar/restaurant repays advance and receives title).

EO 2020-47 – Temporary extension until June 30 for enforcement of driver’s licenses, state IDs, and vehicle registrations that would have expired between February 1 and May 31.

EO 2020-48 – Authorized remote participation in public meetings and hearings and relieved school boards of monthly meeting requirements.

EO 2020-49 – Enhanced operational capacity and efficiency at healthcare facilities by allowing hospitals to add beds, operate temporary facilities, etc., and permit certain healthcare providers to practice outside of their licensing and waiving certain licensing, continuing education, etc. requirements.

EO 2020-50 – Protects residents of long-term care facilities from eviction/discharge, provides added rights for readmission and protects workers at long-term facilities by cancelling communal dining and outside events, acquisition of PPE, disinfecting facilities, and includes care requirements for COVID-19 affected residents.

EO 2020-51 – Provided for “disaster relief child care centers” for essential workforce.

EO 2020-52 – Temporarily extends certain pesticide applicator certificates.

EO 2020-53 – Provides additional restrictions for price gouging.

EO 2020-54 – Suspends evictions of tenants or mobile home owners from their home, prevents personal delivery of demand for payments.