30 Oct

October 2020 Michigan HR Legal Updates

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Michigan Supreme Court Strikes Down Governor’s Emergency Authority

What happened?
On October 2, 2020, the Michigan Supreme Court struck down the emergency powers that the governor had been using to issue emergency orders throughout the COVID-19 pandemic, nullifying over 100 COVID-related executive orders.

What are the details?
Governor Whitmer had been relying on the Emergency Powers of the Governor Act of 1945 to issue emergency executive orders after the limited duration provided by the Emergency Management Act of 1976 had ended. The state’s Supreme Court found the Emergency Powers of the Governor Act of 1945 to be an unconstitutional delegation of power by the legislative branch to the administrative branch. With the previous regulations now nullified, other regulatory agencies have stepped up to help fill in some spots left by the old orders. For example, Michigan Occupational Safety and Health Administration (MIOSHA) has issued workplace interim orders to keep some workplace standards in place.

The interim enforcement plan can be found here.

An article going over the changes can be found here.

What do employers need to do?
Michigan employers should stay vigilant on new orders being given out by regulatory agencies.

Michigan Health Agency Issues Several Orders

What happened?
The Michigan Department of Health and Human Services (MDHHS) has issued several health-related orders.

What are the details?
The MDHHS issued five orders between October 6 and October 9, 2020. These orders touch on things such as:

  • Face mask requirements,
  • Defining close contact,
  • Defining “employee” for use in health-related orders,
  • Defining gatherings,
  • Defining the symptoms of COVID-19,
  • Creates limitations on gatherings in stores, libraries, and museums,
  • Restricts gather sizes for sporting events, and
  • Restricts gathering sizes for non-tribal casinos.

The orders also create protections for workers, for example, gatherings of employees in the workplace is banned for several situations. Another order creates requirements for food service establishments specifically. Finally, the orders contain guidelines for employees who are in quarantine to follow.

A more in-depth breakdown of the orders can found here.

A full list of the epidemic orders issued by the MDHHS can be found here.

The MDHHS has produced an infographic about the orders, available here. They have also produced a fact sheet, found here.

What do employers need to do?
Michigan employers should keep up to date on pandemic orders issued by the MDHHS, as they will be likely impacting workplace operations.


MIOSHA Issues Emergency Rules to Fill Gap Left by Nullified Governor’s Orders

What happened?
The MIOSHA has issued emergency health and safety rules aimed at controlling, preventing, and mitigating the spread of COVID-19.

What are the details?
In the wake of the state Supreme Court striking down the governor’s authority to issue emergency orders, nullifying over 100 executive orders related to COVID-19, MIOSHA has issued several health-related orders in an effort to protect employees.

The orders touch on many subjects including:

  • Exposure Determination
  • COVID-19 Preparedness and Response Plan
  • Basic Infectious Disease Prevention Measures
  • Health Surveillance
  • Workplace Controls
  • Personal Protective Equipment
  • Industry Specific Requirements
  • Training Requirements for All Employers
  • Recordkeeping Requirements for All Employers

The majority of these orders are simply a reproduction of the previous executive orders. Employers who did not make changes to workplace conduct since the outcome of the state’s Supreme Court ruling will likely need to make minimal, if any, changes to be brought up to speed with MIOSHA’s expectations. The orders will sunset, unless extended, in six months (April 14, 2021).

An article going more in depth with MIOSHA’s orders can be found here.

What do employers need to do?
Michigan employers should review the orders issued by MIOSHA contained in the above article to ensure they are in compliance.


Michigan Grants Business and Worker Protections Related to COVID-19

What happened?
On October 22, 2020, Governor Whitmer signed multiple bills that protect Michigan employers that are in compliance with COVID-related laws, including agency orders, and protect workers who do not report to work because they were exposed to, display symptoms of, or tested positive for COVID-19.

What are the details?
Namely, three impactful bills were passed: HB 6030, HB 6031, and HB 6032.

HB 6030 provides businesses that are complying with federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 immunity from any COVID-related claims. Specifically, claims including tort claims or cause of action claims related in any way to the exposure or potential exposure to COVID-19.

HB 6031 provides protections to businesses that are covered by HB 6030, but instead of protection against claims from employees, it will provide protection from MIOSHA’s State Plan relating to COVID-19 exposure or illness.

HB 6032 will instead provide protections to employees. The law specifically protects employees who do not report to work under the following circumstances:

  1. An employee who has tested positive or displays principal symptoms of COVID-19 shall not report to work until the following are met:
    1. If the employee has a fever, 24 hours since the fever has stopped without use of fever-reducing medication;
    1. 10 days have passed since the first symptom appeared or the date of a COVID-19 positive test result; and
    1. The employee’s principal symptoms of COVID-19 have improved.
  2. An employee who has close contact with an individual who has tested positive for or who displays the principal symptoms of COVID-19 shall not report to work until the following are met:
    1. 14 days have passed since the employee’s last close contact with the individual; or
    1. The individual with whom the employee had close contact is medically determined to not have had COVID-19 at the time of the close contact.

Additionally, HB 6032 prohibits employers from retaliating against workers for complying with the above. HB 6032 also allows aggrieved workers to bring a private cause of action in circuit court for injunctive relief and monetary damages and requires a court to award a plaintiff who prevails in such an action damages of not less than $5,000. However, the above protections do not apply to employees displaying COVID-19 symptoms who fail to make reasonable efforts to schedule a COVID-19 test within three days after a request from their employer.

HB 6030 can be found here.

HB 6031 can be found here.

HB 6032 can be found here.

What do employers need to do?
Michigan employers should consult their employment attorney to ensure they are in compliance with all current applicable laws to them, so they may enjoy the benefits of the protections provided to them.


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