Judge Denies Injunction in Michigan Executive Order Challenge

In response to the rapidly increasing outbreak of COVID-19, on March 24, 2020, Governor Whitmer signed Executive Order 2020-21, directing Michigan residents to remain at their home or in their place of residence to the maximum extent feasible. Many businesses were temporarily shut down unless deemed essential, and individuals were limited to traveling outside their homes.

On Wednesday, April 29, 2020, Michigan Court of Claims Judge Christopher Murray denied a motion for a preliminary injunction sought by several Michigan residents who claimed that the various COVID-19-related executive orders issued by Governor Gretchen Whitmer, including the “Stay Home, Stay Safe” order, and the related intrastate travel restrictions, infringed on their constitutional rights. Specifically, the previous executive orders issued by Governor Whitmer that required residents to stay home and restricted travel were alleged to have violated Plaintiffs’ rights to both procedural due process and substantive due process.

The Judge determined that the plaintiffs have not shown a substantial likelihood of success on the merits in their challenge to the executive order restrictions.

Judge Christopher Murray further noted in his opinion that, “It is true that this measure is a severe one, and greatly restricts each of our liberties to move about as we see fit, as we do in normal times. But the governor determined that severe measures were necessary, and had to be quickly implemented to prevent the uncontrolled spreading of the virus.”

This procedural denial of the request for a preliminary injunction does not resolve the overall merits of the case in question, but does give an indication of the Judge’s opinion as to the potential success of the plaintiffs in this case.

NOTE: On April 30, Governor Whitmer replaced prior orders with Executive Order 2020-69, to be in force through May 28, 2020.


We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Governor’s Executive Order Protecting Workers Exposed to Coronavirus From Discharge or Retaliation

Governor’s Executive Order Protecting Workers Exposed to Coronavirus From Discharge or Retaliation

Today, April 3, Governor Whitmer signed Executive Order 2020-36 (“EO-36”). Under the Governor’s prior “stay home” order, EO 2020-21. Employers were permitted to continue operations in essential industries and under other specified situations, see, Employer Actions to Comply with Michigan Stay-At-Home Order. The original stay home order did not address whether and under what situations employees permitted to work could refuse to report, and what actions employers were permitted to take to require those employees to report.

Today’s EO-36 addresses some of those questions. First, EO-36 prohibits any employer from discharging, disciplining, or retaliating against an employee who is otherwise permitted to work, but who stays home from work because the employee or a person in contact with the employee has symptoms of or tests positive for COVID-19.

The EO also expands on the Governor’s prior “stay home” order (EO 2020-21) by declaring as public policy that any person who has symptoms of the virus or tests positive, or who is exposed to someone symptomatic or positive, should remain at home. We interpret this Order to require an employee of a permissibly-continuing business performing in-person work to stay at home, and that the Employer of such persons will screen to prevent the reporting to work of such persons. Health care, first responder and other groups are exempted meaning that those employees are expected to continue to report to work.

Persons Addressed by EO-36

Key to the scope of this Order are the persons addressed. The Order identifies two groups of persons:

  1. Positive Tested or Display Symptoms. Persons who themselvestest positive for COVID-19 or who display one or more of the principal symptoms of COVID-19″ are referenced in “Section 2” of the Order. These persons are subject to the longest-duration stay-home requirements.
  2. Close Contact. Persons who “have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19″ also are subject to specific stay home conditions.

For the purpose of this article, persons in these groups are here referred to as “Presumed Infectious.” Different and specific “stay home” periods are established for each Presumed Infectious group identified. Note that all key terms used in the Executive Order are defined there.

No Adverse Employment Action Against Presumed Infectious Employees

Presumed Infectious employees otherwise permitted to work who absent themselves to stay home are protected where their health status falls into either of the categories described in the immediately prior section of this article.

A Presumed Infectious protected employee must be treated by the Employer “as if he or she were taking medical leave under the Paid Medical Leave Act” (“PMLA”). Leave used may be debited and may be unpaid if the worker has exhausted paid leave entitlement. Significantly, we conservatively interpret EO-36 to mean that the length of such leave is unlimited by the amount of leave that a protected employee has accrued under the PMLA or any leave provision of the employer’s policy. EO-36 expressly states that the leave right extended to the employee under that Emergency Order “must extend, whether paid or unpaid, as long as the employee remains away from work within the time periods” specifically set forth in the two situations identified above.

Employers are prohibited from discharging, disciplining, or otherwise retaliating against a protected employee during the period of their protected status. The details of the duration of protected status are set out in Sections 2 and 3 of the Executive Order.

Workers Who are Not Protected Who Fail to Report

EO-36 does not expressly sanction discipline or discharge for employees who are permitted and expected by their Employer to work, but who fail or refuse to report. However, the Executive Order does so indirectly. The EO states:

“Nothing in this [EO-36] shall be taken to prevent an employer from discharging or disciplining an employee (1) Who is allowed to return to work … but declines to do so … or (3) [f]or any other reason that is not unlawful.”

Workers Exempted from Protections of EO-36

The following are expressly exempted from EO-36, with the result that they cannot refuse to report to work even if they meet the criteria set out in the Order:

“(a) Health care professionals.

(b) Workers at a health care facility…

(c) First responders (e.g., police officers, fire fighters, paramedics).

(d) Child protective service employees.

(e) Workers at child caring institutions…

(f) Workers at correctional facilities.”

Specification of Further Stay-at-Home Provisions For Those Possibly or Actually Infected, Including Employer Screening of In-Person Workers

EO-36 expands non-employment provisions of the prior stay home order. Under EO-36, no person who meet the criteria as “Presumed Infectious Persons” (test positive, display symptoms, or were exposed to someone meeting these criteria) should leave their home except to “the extent absolutely necessary to obtain food, medicine, medical care, or supplies that are needed to sustain or protect life” or for permitted recreational purposes. Further, Presumed Infectious persons who elect to leave home “should wear some form of covering over their nose and mouth, such as a homemade mask, scarf, bandana, or handkerchief.”

There is no qualification limiting the scope of this section of EO-36 other than the exempt industry groups identified above. Thus, we conservatively interpret this enhanced stay home directive to mean that Presumed Infectious employees providing in-person services to Employers whose businesses are otherwise permissibly continuing to operate must not report to work. Similarly, while EO-36 does not expressly so provide, we conservatively conclude that Employers who continue to operate must take reasonable measures to screen employees continuing to provide in-person services and bar them from entering the Employer’s premises for any reason.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.


We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.


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.

FFCRA: Required Employer Actions By April 1, 2020

Under newly issued guidance, the Department of Labor (DOL) has set the effective date of the FMLA Expansion Act and Emergency Paid Sick Leave Act (Acts) as April 1, 2020. This is one day earlier than anticipated. Employers must comply with these new laws from April 1 to December 31, 2020. For more information on these Acts, which are set forth under the Families First Coronavirus Response Act (FFCRA), please see our previous Client Alert.

Updated FFCRA Guidance

DOL News Release

Along with the updated guidance, the DOL issued a News Release outlining the compliance information being issued. See https://www.dol.gov/newsroom/releases/whd/whd20200324

As expected, the News Release verified that more guidance would be forthcoming:

The guidance announced today is just the first round of information and compliance assistance to come from WHD.

DOL Question and Answer

Additionally, the Wage and Hour Division of the DOL issued updates in a Question and Answer format. See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Highlights include the following information:

  • That the Acts are effective April 1, 2020 and are not retroactive.
  • How employers with fewer than 500 employees are impacted.
    • Two or more employers will be combined under the Fair Labor Standards Act (FLSA) joint employer test or the Family and Medical Leave Act (FMLA) integrated employer test.
  • That the Acts do not apply to private employers with 500 or more employees.
  • That small business exemptions will be addressed in forthcoming regulations.
  • How to count hours worked by a part-time employee, how to count overtime hours, and how to calculate the rate of pay.

DOL Fact Sheet for Employers

The following fact sheet for employers was also provided: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Nonenforcement Policy

The DOL issued Field Assistance Bulletin No. 2020-1 setting forth its nonenforcement policy for good-faith compliance with the Acts. Importantly, the nonenforcement policy will stem from March 18 through April 17, 2020. However, the DOL intends on fully enforcing the Acts and any violations thereunder after this stay is lifted. The Bulletin states, in pertinent part:

Enforcement Guidance 
The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts “reasonably” and “in good faith” when all of the following facts are present:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020,  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.
  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

If the public or private employer either (i) violates the Act willfully, (ii) fails to provide a written commitment to future compliance with the Act, or (iii) fails to remedy the violation upon notification by Department, the employee seeking payment, or a representative of that employee, including by making all affected employees whole as soon as practicable, the Department reserves its right to exercise its enforcement authority.

After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.
***
For purposes of this non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but not later than seven 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.

FFCRA Poster

Furthermore, the DOL has just released the required notice for employers to post. The poster can be found here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Accompanying FAQs answer some important questions. See https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. Highlights include:

  • The Acts require that the FFCRA notice must be posted in a conspicuous place on the employers premises where employees can see it.  However, for employees who are teleworking, employers can meet these requirements by mailing or emailing the notice.  The employer could also post the notice on an employee information internal or external website.
  • There is no requirement to post the notice in multiple languages (although the DOL is working on translations).
  • Laid off employees are not entitled to the notice.  It only must be provided to current employees, which includes newly hired employees.  Again, the Acts are effective from April 1 through December 31, 2020, so the notice requirements apply to any new employees hired within this time period.
  • Small employers under 50 employees must also post the notice, even if they intend on claiming an exemption.
  • This notice is issued on March 25, 2020.  Employers are advised to check the following website for updates:  https://www.dol.gov/agencies/whd

Interaction with State Law

Finally, employers should also keep in mind the interaction of the Emergency Paid Sick Leave Law with their own paid time off policies and state law requirements.

For example, employers with employees in Michigan must take into consideration Michigan’s Paid Medical Leave Act. One of the qualifying reasons for leave under this law is the “closure of the eligible employee’s primary workplace by order of a public official due to a public health emergency…” Unless the business is deemed essential under Michigan’s Executive Order 2020-21 and therefore allowed to stay open, the Michigan Paid Medical Leave Act will likely apply.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.


We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.


Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Employer Actions to Comply With Michigan “Stay-at-Home” Executive Order 2020-21

Employer Actions to Comply with Michigan “Stay-at-Home” Executive Order 2020-21

Effective Tuesday March 24, 12:01 am, Employers are with certain exceptions, ordered by Governor Whitmer to cease all operations that cannot be performed by employees working remotely from their homes. “Individuals” residing in Michigan, including employees, are similarly ordered to “stay at … their residence,” again with certain exceptions. To emphasize the importance of the order and to give it the most broad effect, it is to “be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.[1] EO 2020-21 §1 (referred to as the “EO”). This article focuses on the obligations of Employers employing workers in Michigan. The Order is available here.

EMPLOYER OBLIGATIONS

Fundamental Prohibition on In-Person Work

The specific prohibition on in-person work in EO Section 4 states in its entirety:

“No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”

Thus, all in-person work must be:

  • Necessary to sustain or protect life, or
  • Necessary to conduct the minimum basic operations of the Employer.

Workers expected to perform “minimum basic operations” as permitted under Section 4 are those “whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.” EO §4.b.

Critical Infrastructure Workers are Permitted to Perform In-Person Work

Employees permitted to engage in in-person work are referred to as “critical infrastructure workers,” adopting the terms used in federal Coronavirus enactments. EO §4.a. Critical infrastructure workers include workers so designated under federal guidance issued March 19, 2020, available here. Federal guidance adopted in the EO limits critical infrastructure workers to those “who conduct a range of operations and services that are essential to continued critical infrastructure.” Id p. 1. This federal guidance includes an industry-specific discussion, “Identifying Essential Critical Infrastructure Workers.” Id., pp. 4 et seq. Thus, workers in the identified sectors may or may not be allowed to engage in in-person work, and it remains the responsibility of the Employer to determine that each “critical infrastructure worker” is properly so categorized. The Michigan EO adopts the following sectors as identified in the federal guidance:

  1. Health care and public health.
  2. Law enforcement, public safety, and first responders.
  3. Food and agriculture.
  4. Energy.
  5. Water and wastewater.
  6. Transportation and logistics.
  7. Public works.
  8. Communications and information technology, including news media.
  9. Other community-based government operations and essential functions.
  10. Critical manufacturing.
  11. Hazardous materials.
  12. Financial services.
  13. Chemical supply chains and safety.
  14. Defense industrial base.

The Michigan EO adds to the above list the following sectors:

  1. Child care workers serving dependents of critical infrastructure workers.
  2. Workers in designated supply and distribution centers, including workers needed to supply or distribute to other such centers. There are specific criteria for this category and “[b]usinesses … that abuse their [supplier/distributor] designation authority shall be subject to sanctions to the fullest extent of the law.” EO 9.b.6.
  3. Insurance industry.
  4. the provision of “food, shelter, and [life] necessities” to persons who are (a) economically disadvantaged, (b) otherwise needy, (c) disabled, or who (d) need assistance due to the Coronavirus emergency. The Governor, in guidance issued after the EO, clarified that hotels and places of lodging provide critical infrastructure to the extent that the customers of those businesses are providing mitigation or containment efforts or are themselves critical infrastructure workers of other employers.
  5. Labor union officials including benefit fund administrators.

Obligations of Employers Intending to Continue Operations

  1. Duty to Designate Critical Infrastructure Workers

Most employers that continue to conduct in-person operations under the EO must designate and inform those workers. Designations must be in an ordinary or electronic writing after March 31, until that date, designations may be oral. EO §5.a.

Employer operations involving the following situations are exempt from required designations:

  • “health care and public health” services;
  • “necessary government activities;” and,
  • community shelter, food and life necessities operations as described above.
  1. Duty to Suspend Other Operations

An Employer that continues to operate with permitted in-person workers must suspend all other operations. EO § 5.b.[2] As an example, a hotel providing lodging to persons who are themselves critical infrastructure workers of other employers must suspend all non-lodging services and amenities such as in-service restaurant and gym access.

Since compliance with EO § 5.b. is a requirement of permissibly performing any in-person work, the improper continuation of “other operations” would appear to put at risk the permissibility of otherwise-allowed in-person work performed by critical infrastructure workers.

  1. Adoption of Workplace Social Distancing Practices

The operating Employer must adopt social distancing procedures including adoption of the most restrictive practices on workplace access, promoting remote work “to the fullest extent possible,” screening and requiring symptomatic workers and workers with possible exposure to COVID-19 to remain away from the workplace, and engaging in robust workplace hygiene and disinfectant practices. Stringent and aggressive fulfillment of this duty may predictably be expected under the General Duty clause of the Occupational Safety and Health Administration Act (OSHA) in later review actions.

We recommend in addition to the EO requirements that the Employer immediately (1) adopt these required social distancing policies in writing, (2) where workers have public contact, adopt policies that apply social distancing requirements to the public persons coming in contact with workers, including pre-access screening for travel, exposure and other risk factors, and (3) post, publicize, and train all workers of all such policies and requirements.

  1. Additional Workplace Safety Guidance and Advice

The Centers for Disease Control and Prevention (CDC) are maintaining and updating a useful website, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease. Topics include “Maintaining Healthy Business Operations” and “Maintaining a Health Work Environment.”

PENALTIES AND DURATION

The stated penalty for violation is minor, specifically, a “willful violation” is designated as a misdemeanor – criminal – violation.

The Order as presently issued expires April 13, 2020 at 11:59 pm.

[1] All italicized language when quoting the Executive Order is added as assistance to the reader.

[2] Note while EO § 5.b. literally references, and thus permits, only activities “to sustain or protect life,” we interpret this provision, which applies to employment of critical infrastructure workers, also to include and permit the employment of workers designated as necessary to conduct minimum basic operations of the Employer.


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.