EEOC | Fraser Blog

Five Stories That Matter in Michigan This Week – October 27, 2023

EEOC Publishes Proposed Harassment Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) recently published its long-anticipated proposed guidance on “Enforcement Guidance of Harassment in the Workplace.” Among other things, the guidance reflects the U.S. Supreme Court’s 2020 Bostock decision, which extends the meaning of “sex” in Title VII to sexual orientation and gender identity; provides that sex-based discrimination includes harassment based on pregnancy, childbirth, and other related medical conditions, such as conception or abortion; and addresses how electronic communication (including social media) can create a hostile work environment.

Why it Matters: The proposed guidance seeks to clarify and address uncertainties and open questions for employers. The opportunity for public comment is available until November 1, 2023.

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Provisional Patent Application Overview

While deciding whether to file a patent application, it is important to consider both your short- and long-term goals in view of your finances and the current state of your idea. Depending on these factors you may be deciding between filing a provisional or non-provisional application.

Why it Matters: A provisional patent application is a type of patent application that serves as a placeholder for a non-provisional patent application, providing the applicant with a priority date for their invention and a one-year window to follow up and file a non-provisional application. Learn more from your Fraser Trebilcock attorney.

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Governor Whitmer Signs Bills Permitting State and Tribal Cannabis Businesses to Engage in Commerce with Each Other

The landscape of the cannabis industry in Michigan continues to evolve as new legislative efforts in Michigan aim to bridge the operational divide between state-licensed cannabis enterprises and tribal cannabis businesses. Two pivotal bills, Senate Bill 179 and Senate Bill 180, were signed by Governor Whitmer on October 19, 2023, creating a collaborative business environment for these formerly siloed entities.

Why it Matters: Prior to the legislation being enacted, state-licensed and tribal cannabis operations in Michigan functioned independently, restrained from mutual commerce and collaboration, including prohibitions on cannabis products being sold between these businesses. The new legislation allows these two distinct parts of the cannabis industry to interact.

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UAW and Ford Announce Tentative Deal

It was announced earlier this week that the United Auto Workers (UAW) and Ford Motor Company reached a tentative deal.

Why it Matters: The tentative deal would give workers an immediate 11% raise, a 25% increase in wages over the next four years, a reinstatement of cost-of-living adjustments, and additional benefits.

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Client Update: Corporate Transparency Act Report of Beneficial Ownership Information

Pursuant to the Corporate Transparency Act of 2021, beginning on January 1, 2024, most newly formed entities will be required to report to the Financial Crimes Enforcement Network information (FinCEN) about the identity of the entity’s beneficial owners and senior officers. And by the end of 2024, nearly all companies will have to report.

Why it Matters: There are roughly 1 million entities in good standing in the State of Michigan and at some time in 2024, most will need to make a beneficial ownership report to FinCEN. While there are numerous exemptions available, their application is limited to large enterprises and businesses that operate in industries that are already highly regulated. Therefore, it is important to remember that the reporting requirement will extend hundreds of thousands of entities. Learn more.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Intellectual Property | Andrew Martin
Cannabis Law | Sean Gallagher
Business & Tax | Robert Burgee

Five Stories that Matter in Michigan This Week – December 2, 2022

New Michigan NIL Legislation Takes Effect December 31, 2022

Michigan House Bill 5217 which was passed into law in 2020, takes effect December 31, 2022 and sets new standards for how student-athletes can earn compensation for the use of their name, image, and likeness (“NIL”) in Michigan.

Why it Matters: Student-athletes, covered higher education institutions, and businesses must ensure that NIL deal comply not only with NCAA rules and regulations, but also with the new standards that will apply in the State of Michigan starting in 2023. For example, higher education institutions are prohibited from paying a student-athlete compensation directly for the use of their NIL rights, or revoking or reducing a student-athlete’s athletic scholarship because they earned compensation from an NIL deal.

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FTC Safeguards Rule Deadline Extended, But Don’t Wait to Implement Data Security Compliance Protocols

The Federal Trade Commission recently extended the deadline, from December 9, 2022, to June 9, 2023, for compliance with the most stringent requirements of its latest rulemaking, revisions to the Safeguards Rule under the Gramm Leach Bliley Act (“the GLBA”).

Why it Matters: The GLBA, which was implemented over 20 years ago, defines how businesses gather, use, and share certain financial information about their customers. The Safeguards Rule establishes certain data security requirements for how a business stores that information. Learn more from our Fraser Trebilcock attorneys on the matter.

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The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law

Premises liability cases are often litigated in Michigan with considerable difficulty. In a premises liability claim, a possessor of land owes a duty to an invitee to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. However, plaintiffs frequently find difficulty in successfully making claims under a premises liability theory due to the “open and obvious” defense.

Why it Matters: Michigan courts have traditionally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. However, the courts appear to be slowly eroding this traditional approach. Learn more on the subject.

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Michigan Department of Technology, Management and Budget Prevailing Wage Policy Upheld by Court of Claims

On March 1, 2022, the State of Michigan began to require state contractors and subcontractors to pay prevailing wage on construction-based contracts issued by the Department of Technology, Management & Budget (“DTMB”). The directive established the following guidelines for when the payment of a prevailing wage is required.

Why it Matters: In October, the Michigan Court of Claims sided with the state and ruled that DTMB did not violate the law when it implemented its prevailing wage policy. The court granted DTMB’s motion for summary disposition, resulting in the dismissal of the case.

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EEOC Issues New Workplace “Know Your Rights” Poster

The Equal Employment Opportunity Commission has issued an updated “Know Your Rights” workplace poster. Employers with more than 15 workers are required to display the poster, which can be found here, in their workplace. The updated poster identifies and summarizes laws that protect workers from discrimination and retaliation, and explains how employees or applicants can file a complaint if they believe that they have experienced discrimination.

Why it Matters: Employment law is a constantly evolving area, so it’s important for employers to stay abreast of new developments, such as this updated poster requirement from the EEOC. Contact a member of our Labor, Employment & Civil Rights team with any questions.

Related Practice Groups and Professionals

Higher Education | Ryan Kauffman
Business & Tax | Robert Burgee
Insurance Law | Laura DeMarco
Labor, Employment & Civil Rights | Aaron Davis

Five Stories that Matter in Michigan This Week – November 25, 2022

U.S. Supreme Court Declines Challenge to 2018 Seattle Hotel Health Insurance Law

The U.S. Supreme Court on Monday, November 14, 2022, turned away a challenge to a 2018 Seattle law requiring hotels to pay for health insurance for low-wage workers.

Why it Matters: The justices declined to hear an appeal by a group called the ERISA Industry Committee (ERIC) of a lower court’s ruling that upheld the law. The U.S. Supreme Court’s decision not to take up the challenge could encourage other cities and states to adopt similar requirements intended to address the widespread lack of health insurance among low-wage employees. (as reported by Reuters on November 21, 2022.)

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EEOC Issues New Workplace “Know Your Rights” Poster

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Business Planning for the Future

A lot of small-to-medium size businesses devote time and focus on their near-term future but may not think of what 5-10 years will bring. The value of a business can often be in the ability to transition it to a new owner, but some business owners are unsure how to set themselves up to be successful in this arena.

Why it Matters: Capitalizing on the ability to plan for the long-term will aid your business in any transitions that may occur. Learn more here.

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FTC Safeguards Rule Deadline Extended, But Don’t Wait to Implement Data Security Compliance Protocols

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Sixth Circuit Rules that Notice is Required to Terminate Contract for Successive Performances

Under Section 440.2309(2) of Michigan’s Uniform Commercial Code, a contract that “provides for successive performances but is indefinite in duration” may be terminated at any time (without cause). However, as a U.S. Court of Appeals for the Sixth Circuit decision points out, reasonable notice of such termination must be provided, unless the requirement of notice is waived via the contract.

Why it Matters: The court’s ruling in the case of Stackpole International Engineered Products v. Angstrom Automotive Group is a reminder for buyers and sellers, especially in the manufacturing industry, who enter into contracts that provide for successive performances to work with experienced legal counsel in the drafting, review and enforcement of commercial contracts to avoid contractual disputes and litigation.

Related Practice Groups and Professionals

Employee Benefits
Labor, Employment & Civil Rights
Business & Tax | Mark Kellogg
Business & Tax | Robert Burgee

COVID Updates — The Latest News for Employers

Despite hopes that the COVID-19 pandemic would be behind us by now, the emergence of the more transmissible Delta variant and consumer opposition to vaccination use are leading to resurgence of infections and infection rates. Those health events are, in turn, causing local, state and now the federal government, governmental agencies, and employers, to revisit, and, in some instances, reinstate, workplace health and safety policies. Just as COVID health risks have not disappeared, so, too, Employers who do not remain compliant with changing rules are, or may become, exposed to liability or penalty.

While cases in Michigan remain relatively low, and the state government has indicated that no changes in policies are imminent, it’s important for employers to stay on top of the latest COVID-related developments. If we’ve learned anything over the last 16 months, it’s that we need to expect (and prepare for) the unexpected.

Can an employer mandate that its employees be vaccinated?

In May, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) confirmed advice we had provided (see, EEOC Issues New Guidance on Workplace Vaccine Policies – FraserTrebilcock Blog (fraserlawfirm.com) that an employer mandate is allowed with respect to COVID vaccines allowed under Emergency Use Authorization (“EUA”) by the FDA, subject to the limitations discussed in the next section. The EUA-authorized vaccines are those manufactured by Pfizer, Moderna and Johnson & Johnson. Additionally, the Department of Justice released a Memorandum of Opinion on July 6 indicating that federal law “does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject” to an EUA.

Many employers have already announced vaccine mandates in both the public and private sectors. President Biden announced on July 29 that all federal workers must be vaccinated for COVID-19 or be subject to strict testing measures. Some state (e.g., California) and municipal (e.g., New York City) governments have imposed similar requirements for their employees. In the private sector, beginning primarily with healthcare providers, but increasingly in non-healthcare, employers including Google, Morgan Stanley, Goldman Sachs and others are also requiring that employees be vaccinated.

What exceptions must be allowed if vaccines are mandated?

Employers may mandate vaccines as long as they comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity law considerations, including accommodations for medical or religious reasons. For more on the EEOC’s guidance regarding vaccines and reasonable accommodations, please reference our prior analysis of these issues.

Can employers ask their employees about their personal vaccination status?

Yes, but once that question is answered, employers should avoid inquiring about further medical information or history. We also covered this issue in our discussion of EEOC vaccine guidance . While federal guidelines require employers to provide a safe working condition, there is a risk that such a question, or any follow-up questions that relate to employee health, could be interpreted as a prohibited disability inquiry under ADA.

Can businesses ask their customers or clients about their personal vaccination status?

Neither state nor federal law restrict private businesses from asking for or requiring proof of vaccination to enter a store, office or other physical location of a business. Despite social media “memes” and misinformation recently circulating suggesting the opposite, inquiring about a customer’s vaccination status is not a HIPAA violation or a violation of constitutional rights.

Can employers require masks of employees while working onsite?

Generally, and subject again to worker disability law protections, employers have the legal right to require mask wearing onsite. There may be instances where a worker could refuse to wear a mask, such as if it negatively impacts job performance or safety, or he or she has a disability preventing mask use or a sincerely held religious belief. Employees who have a disability that interferes with their ability to wear a face mask may request a “reasonable accommodation” under ADA. Ford Motor Company recently announced that employees must start wearing masks again at plants in Missouri and Florida.

As cases continue to surge, more jurisdictions may begin mandating that employees wear masks. On July 27, the U.S. Centers for Disease Control and Prevention (“CDC”) issued guidance encouraging vaccinated individuals to begin wearing masks indoors in locations where COVID-19 transmission is “substantial” or “high.” The CDC’s announcement is expressly not a mandate, but intended to serve as guidance. Governor Whitmer indicated shortly after the CDC’s recommendation came out that Michigan would not be implementing a mask mandate at this time.

If you have any questions or concerns about your business’ COVID-19-related policies and procedures, please contact Dave Houston or your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

EEOC Issues New Guidance on Workplace Vaccine Policies

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance for employers regarding employment vaccination programs. As discussed below, the EEOC’s updated guidance provides additional information concerning key issues such as whether:

Employers may mandate vaccines
An employee’s vaccination status is confidential medical information
Employers may offer vaccination incentives to employees

Employer-Mandated Vaccination and Reasonable Accommodations

Under the EEOC guidance, employers may require all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity law considerations. The EEOC does not directly enforce state anti-discrimination laws, and this Guidance should not be interpreted as giving vaccination requirements a “pass” under Michigan civil rights and worker protection laws. Under federal law, “reasonable accommodations” for vaccine-sensitive or other “disabled” workers who cannot due to a disability be vaccinated, may include requiring unvaccinated employees to wear face masks and periodic testing for COVID-19.

The Guidance also explains that when implementing a vaccination policy, employers should be aware that, “because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” Employers may not adopt vaccination policies that discriminate on the basis of a protected characteristic.

Voluntary Employer COVID-19 Vaccination Programs

The Guidance permits employers to adopt a voluntary COVID-19 vaccination policy as an alternative to a mandatory vaccination requirement. The ADA prohibits taking an adverse action against an employee for refusing to participate in a voluntary employer-administered vaccination program.

Vaccine Incentives

Employers may offer incentives for employees to receive vaccinations according to the EEOC. The EEOC requires that incentives offered by an employer not be “so substantial as to be coercive.”

However, the EEOC explained that federal equal employment opportunity laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party in the community, such as a pharmacy, personal health care provider, or public clinic.

Documentation of Vaccination Status

Under the Guidance, employers may request documentation of vaccination status but must keep vaccination information confidential, including ensuring that such information is kept separate from employees’ general personnel files.

EEOC guidance on COVID-19 vaccination issues for employers is complex and is likely to be further updated. In some cases, state and local requirements may differ from federal guidance. If you have questions about these issues, please contact Dave Houston or your Fraser Trebilcock attorney.