December 2020: Michigan Small Business Grants

The Michigan Strategic Fund approved a $10 million grant program (Pure Michigan Small Business Relief Initiative) to assist small businesses impacted by the COVID-19 virus. Eligible small businesses could receive upwards of $15,000.

Eligibility Requirements*

  • For-profit entity
  • Not filed for bankruptcy in the last 10 years
  • At least two employees, fewer than 50 employees
  • 2019 annual gross revenue exceeds $25,000

Applications for the grant will open on December 15, 2020 at 9:00 a.m. EST.

We have also provided employer resources, such as Frequently Asked Questions regarding employment laws to quickly address any issues you may have experienced already amid the COVID-19 crisis. Work from Home and Workplace Compliance guides for employers to utilize.

We continue our commitment to open communication with our clients, employees, and partners and ask that we continue to support each other in these challenging times.

Review the full grant details here.

*View full eligibility requirements.

October 2020 Michigan HR Legal Updates

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.

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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.

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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.

August 2020 Michigan HR Legal Updates

Michigan Enforces Stricter COVID-19 Definitions Reducing Leave Protections

What happened?
Governor Whitmer just issued an executive order that limits the availability of job-protected leave moving forward only to those employees who pose a “particular risk of infecting others with COVID-19.”

What are the details?
Michigan employers of all sizes cannot discharge, discipline, or retaliate against their employees for staying home from work while they pose a “particular risk of infecting others.” During the time the covered employee is home, the employer must treat them as though they are on leave under the Michigan Paid Medical Leave Act. If an employee runs out of paid leave (or has none), the employer must provide them with unpaid leave during their absence for as long as they pose a “particular risk of infecting others with COVID-19.” Note that Emergency Paid Sick Leave under the FFCRA applies separately from EO 2020-172 and leave offered under Michigan’s PMLA.

Whether someone is considered to pose a particular risk of infecting others with COVID-19 under EO 2020-172 depends on the order’s vital definition of “the principal symptoms of COVID-19.” The order defines that phrase as occurring in only two scenarios: (1) an employee has either a fever, an uncontrolled cough, or shortness of breath that cannot be explained by a known medical or physical condition; or (2) at least two of the following: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, or abdominal pain, that cannot be explained by a known medical or physical condition.

With that definition in mind, the order distinguishes between two sets of broad circumstances for when an employee poses a “particular risk of infecting others with COVID-19.” First, employees are protected from adverse employment action because they had to stay home after testing positive for COVID-19 or display “the principal symptoms of COVID-19,” but only until three milestones are reached:

  • 24 hours have passed since the resolution of fever without the use of fever-reducing medications;
  • 10 days have passed since the symptoms first appeared or since the employee was swabbed for the test that yielded the positive result; and
  • other symptoms have improved.

Second, employees are protected from adverse employment action because they had to stay home after coming into close contact with someone who either tested positive for COVID-19 or displays “the principal symptoms of COVID-19,” but only until either 14 days have passed since the last close contact (within six feet for 15 or more minutes) or the symptomatic individual receives a negative COVID-19 test. This “exposure risk” set of circumstances does not apply to healthcare professionals, first responders, workers at adult foster care facilities, child protective services employees, or those who work at healthcare facilities, daycares, and correctional facilities.

Note: Employees cannot be ordered back to work upon receiving a negative COVID-19 test result. EO 2020-172 can be read here.

What do employers need to do?
Michigan employers should review their leave policies and update them to reflect the new standards that allow employees to have protected leaves.

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Michigan Childcare Centers and Camp Staff Must Wear Face Coverings

What happened?
On August 6, 2020, the governor signed EO 2020-164 requiring face coverings in childcare centers and camps in certain circumstances.

What are the details?
According to the new order, staff and children must wear a face covering in the following circumstances:

  • all staff and children ages two and older when on a school bus or other transportation;
  • all staff and children ages four and older in all indoor common spaces; and
  • all staff and children ages 12 and older in classrooms, homes, cabins, or similar indoor, small-group settings.

Children under age two are encouraged to wear face coverings when indoors in common spaces. Children are not required to wear a face covering if they cannot medically tolerate it, during mealtime, while swimming, performing high-intensity activities, outdoors while physical distancing, or if they are under age two. This new face covering requirement is not required, though highly recommended, for childcare centers in Phase 5 of the Michigan Safe Start Plan.

EO 2020-164 can be found here.

What do employers need to do?
Employers running childcare centers and camps should immediately begin a process to acquire masks for their employees and begin notifying their customers and clients of the required changes.

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New Executive Order Modifies Worker “Stay-at-Home” Requirements

What happened?
On August 27, 2020, Governor Whitmer issued EO 2020-172, which rescinded EO 2020-166 and provides further guidance and protections to workers who stay home when they or their close contacts are sick.

What are the details?
Like the previous executive order, EO 2020-172 continues to require workers to stay home and prohibits employers from firing or disciplining a worker for staying home, if the worker tests positive, displays principal symptoms of COVID-19, or had come into close contact with someone who was positive or displayed any of the principal symptoms of COVID-19. The variance between both executive orders is the definition of “principal symptoms”:

  • EO 2020-166 defined principal symptoms as displaying one or more of the following: “fever, sore throat, a new uncontrolled cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”
  • EO 2020-172 now defines principal symptoms as any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath, or at least two of the following symptoms not explained by a known medical or physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, or abdominal pain.

EO 2020-172 also clarifies that a worker cannot stay home without being subject to repercussions if any of the symptoms could be explained by any known medical or physical condition other than COVID-19. EO 2020-172 is effective immediately.

EO 2020-172 can be read here.

What do employers need to do?
Michigan employers should review their policies regarding employee’s staying home. In order to reflect the changes made by this executive order.