Many employers are wondering when they can start calling remote employees back to work, what additional precautions need to be taken, if they have a right to require vaccinations, and what the risks are for going back to in-person work. Navigating the MIOSHA Emergency Rules, the MDHHS Emergency Orders, and the COVID-19 Employment Rights Act is a difficult and cumbersome task all on its own.
The requirement to use telecommuting when feasible is required by the MIOSHA Emergency Rules which took effect on October 14, 2020. Largely based on the recent surge of COVID-19 cases in Michigan, Governor Whitmer signed a Certificate of Need for Extension of these rules on April 10, 2021 for an additional 6 months. The rules are now set to remain in effect until October 14, 2021. Specifically, the MIOSHA Emergency Rules require employers to prohibit “in-person work for employees to the extent that their work activities can feasibly be completed remotely.”
Once employers start calling workers back into the office, there are numerous other considerations that need to be made. MIOSHA is still suggesting the use of various control measures to stop the spread of COVID-19 including engineering controls, administrative controls, safe work practices, and personal protection equipment.
In addition to these measures, the COVID-19 Employment Rights Act contains the isolation and quarantine requirements for workers. These requirements have evolved throughout the pandemic as we have learned more about the virus and the most recent version of the Act includes references to the CDC guidance. It is important to stay up to date with the CDC guidance, the MDHHS guidance, and your local health department guidance which will likely continue to change as more and more people are becoming fully vaccinated. For example, although recent CDC guidance allows reduced quarantine in certain circumstances, due to increasing case rates and variant spread in Michigan, MDHHS has reinstated a standard 14-day quarantine for close contacts with COVID-19 cases effective April 5, 2021. Furthermore, the CDC and MDHHS no longer require people who have been in close contact with someone who has COVID-19 to quarantine if they have been fully vaccinated and show no symptoms. However, fully vaccinated people are still required to wear a mask in common spaces of an office setting.
Some employers are considering whether to require employees to get vaccinated as a condition of employment. There is authority to suggest that requiring employees to be vaccinated for COVID-19 is legal for many employers, subject to certain exemptions for disabilities and sincerely held religious beliefs. Employers are also weighing the risks versus rewards of requiring vaccinations. In general, OSHA and MIOSHA require employers to maintain a safe environment for their employees and the vaccine could help achieve this. Alternatively, and although rare, an employee may have an adverse reaction to the vaccine. Whether or not mandating the vaccine is a good idea for your business depends on a variety of factors. In many cases, providing incentives to get vaccinated rather than making vaccination mandatory might be a better option.
Employers and businesses should also be motivated to follow all federal, state, and local statutes, rules, regulations, and orders not only to stop the spread of COVID-19, but to limit potential exposure to liability regarding claims by the public or employees that are exposed to COVID-19 and suffer injuries. Michigan joined a number of states when it enacted Public Acts 236 and 237 which provide certain protections from a COVID-19 claim for employers and businesses if they were following all applicable federal and state statutes, rules, regulations, and orders related to COVID-19 at the time of the exposure. In addition, both acts provide that an “isolated, de minimis deviation from strict compliance” will not destroy immunity to liability.
Authors: Jill K. Miller and Andrew T. Hilger
