Reopening of the Workplace: Issues that May Arise and Helpful Tips

As business owners get closer to reopening their doors, it is time to start planning for and anticipating the problems that may arise with our workforce. The following are issues that may arise, along with some helpful tips.

Workplace Conditions
Governor Whitmer will advise of the required conditions of the workplace such as the wearing of masks, use of partitions, cleaning of areas, use of social distancing, etc. If your employees do not believe these standards are being followed, they can report the business to MIOSHA. The obvious advice is to follow the standards. If they cannot be met, be prepared to defend your actions by establishing the undue hardship it would cause.

What To Do If The Employee Refuses To Return To Work
If an employee refuses to return to work, that employee can be terminated under the policy of job abandonment or unexcused absences. It is recommended that they be advised, in writing, that if they fail to return to work by a certain date they will be terminated.

Sick Leave
You do not want an employee back to work if they feel ill. The Emergency Sick Leave Act extends not only to ill employees but also to employees having contact in the last 14 days with someone with a confirmed diagnosis of COVID-19. The Act only applies if you have under 500 workers.

Under the Act, the employee is entitled to up to 2 weeks/80 hours pay if they are sick or have been possibly infected and must self isolate. If they have already used the time or you employ more than 500 workers, I advise they be allowed to use unpaid time and not be terminated. Terminating under these circumstances will not be looked well upon by an agency or court if the termination is questioned in the future.

Remember that you are allowed to ask for documentation of either the illness or the person that has been diagnosed.

Family Medical Leave Act (FMLA)
Keep in mind that if an employee is currently on FMLA leave that must be continued. If the leave would have expired during the shutdown they are to return to work upon reopening.

The expanded FMLA applies to employers with under 500 workers. This amendment to the Act requires the employer to provide an employee with up to 12 weeks of leave to care for the minor child whose school/day care is closed due to the pandemic. The employee is to be paid 85% of their regular pay, the employer can seek a tax credit of 100% of the payment. This leave will expire in mid-June when school would have normally ended if it is being used for that purpose. The Act continues until the end of 2020 and, therefore if school does not re-open in September and the employee has not used 12 weeks of leave, they are entitled to use the rest of their leave at that time. If the child’s day care is closed due to the pandemic the leave will extend past mid-June for the full 12 weeks.

Americans with Disabilities Act (ADA)
It is highly likely that some of your employees will not wish to return to work due to the fear of contracting the disease. Under the ADA the employer must provide a reasonable accommodation to allow the employee to perform the essential functions of their job and return to work unless the accommodation request would create an undue hardship. An accommodation of not returning to work is not a reasonable request. On the other hand, needing the accommodation of social distancing, wearing a mask, working alone, etc. can be a reasonable accommodation. These accommodations are not necessary without the employee establishing a disability. Under this scenario it is likely they will claim they are at high risk due to high blood pressure, obesity, a compromised immune system, etc. The EEOC has issued guidelines setting forth that the employer has the right to require documentation necessary to confirm the existence of the disability.

You can determine if the accommodation requested is reasonable, will not cause an undue hardship and will allow the employee to perform the essential functions of their job. More than likely, you will be providing the requested accommodation already (mask, social distancing, etc). Be prepared to determine if an employee’s request to work from home can be met.

Testing/Medical Questions
The EEOC has issued guidelines stating that an employer can make medical inquiries and conduct examinations to exclude an employee with a medical condition that would pose a direct threat to the health and safety of other workers. These measures can include asking if an employee has been diagnosed or is experiencing symptoms, taking a person’s temperature, requiring an employee to stay home and also requiring an employee be tested. Your actions will be determined by the number of workers, physical outlay of the business and amount of contact with the public, etc. It may not be feasible to test employees daily, for example, but you can take a temperature daily.

Unionized Workforce
Keep in mind that any change that effects a worker’s safety, attendance policy, policy regarding job abandonment, layoffs or labor reductions require negotiations with the Union as these are mandatory subjects of bargaining. The NLRB has shown some leeway with changes caused by exigent circumstances such as a pandemic but the chance they would find any change made at this point in the crisis or a change regarding future re-opening are slim to none. The NLRB has indicated that it will allow non-negotiated change to a term of employment under exigent circumstances but only if the circumstances were not reasonably foreseen and they require prompt attention. Any reopening at this point will be planned and not in need of prompt action.

Unemployment Benefits
The Governor has clarified when an employee is able to collect unemployment benefits for COVID-related illnesses. The employee can no longer simply state that they are not feeling well, they must display at least one of the principal symptoms of COVID (fever, cough, shortness of breath) or have had contact with someone with a confirmed diagnosis. Contact is defined as being within 6’ of someone for a prolonged period of time without personal protection equipment.

If the employee does not return to work for the above reasons, they will be considered terminated for your purpose, but they will not be considered a voluntary quit for unemployment purposes and will be awarded unemployment benefits.

Many of the guidelines you will have to follow are using one’s common sense. The governor has been very comprehensive with how the businesses must proceed, and we are sure this will continue in the coming weeks, possibly months. This is fortunate in that the employer will have guidance, but it also could be unfortunate if the guidelines are too strict. Please contact me with any questions. I would be happy to walk you through an issue or develop policies or forms to assist your business reopening.

Suzanne P. Bartos is a partner in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended municipal entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. Further, she is a trusted legal advisor to school districts and community colleges on a variety of educational and governance issues. She may be reached at (734) 261-2400 or sbartos@cmda-law.com.