In Case You Missed It: Dykema on Employer Obligations as Michigan Gets Back to Work

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Employers are eagerly anticipating the opportunity to return their workforces to the office as remote work orders are lifted. However, reopening the workplace will bring its own set of legal challenges, from decisions about requiring or reporting vaccination, to dealing with employees who wish to continue working from home and ensuring the worksite is safe for those who are on-premises.

This conversation with James F. Hermon, member at Dykema, addressed those and other legal issues to provide guidance to employers who are preparing for employees to return to the office for the first time in over a year.

Updated Michigan Occupational Health and Safety Administration (MIOSHA) Rules

Recently updated MIOSHA workplace safety rules significantly ease previous restrictions for business, but still entail critical considerations for employers. Compliance with these rules will not only help employers keep their teams safe and healthy, but it will also offer them liability protections through the Michigan COVID-19 Response and Reopening Liability Assurance Act.

Remaining MIOSHA rules that are important as employers plan to bring employees back into the office include:

• Completing daily self-screening protocols. Temperature checks are no longer required under the new rules, though employers may continue them at their own discretion.
• Sending COVID-19 positive, symptomatic, or exposed (but not vaccinated) employees home for a quarantine or isolation period without penalty from their employer.
• Notifying coworkers, contractors, and suppliers who have been in contact with a suspected COVID-19 case. A record of that notification must be kept.
• Maintaining an up-to-date COVID-19 preparedness and response plan, including the designation of an on-site COVID-19 safety coordinator.
• Training all employees in infection control practices – including vaccinations – and how to report unsafe working conditions.

The updated MIOSHA guidance states that vaccinated employees no longer need to socially distance or wear masks, unless they are in health care or public transportation fields, and unvaccinated employees must continue to socially distance when possible and otherwise wear masks (which employers must make available as needed). These rules raise questions about how to identify vaccinated and unvaccinated employees. Employers have a few options here.

• Require employees to show proof of vaccination and make a copy for documentation. If an employer chooses to do so, the documentation must be maintained as a confidential medical record.
• Focus on informing and educating employees of what is allowed for vaccinated and unvaccinated employees. This requires a level of trust that employees will follow the rules relevant to their vaccination status.
• Offer employees the option to keep working from home.
• Treat all employees the same and require social distancing and masking across the board to avoid confusion or risk of exposure between vaccinated and unvaccinated employees.

Similarly, current guidance advises that employees who have had COVID-19 but have not been vaccinated should be treated the same as those who are simply unvaccinated.

Learn more about the updated MIOSHA workplace guidance here.

Considerations Regarding Vaccinations

Employers should note, said Hermon, that it is legally permissible to require vaccinations in the workplace. That said, there are circumstances of refusal that they must consider as well. In cases of disability or medical exemption, employers should consider accommodations based on the type of role. Is the employee in a public-facing or more internal setting? What industry do they work in? Based on the circumstances, employers may consider allowing work from home options, continuing social distancing and mask protocols, or providing a more isolated workspace. For religious exemptions, Hermon advises avoiding efforts to determine if it is a sincerely held belief and to defer to legal counsel for guidance on how to manage such circumstances. In the case of personal, non-religious exemptions for vaccinations, employers do not have to make special accommodations.

In terms of incentivizing vaccinations, Hermon pointed to guidance from the Equal Employment Opportunity Commission. Employers may also recommend vaccinations by offering information and encouragement by sharing educational resources and connecting employees to vaccination opportunities. Finally, employers may take a “don’t ask, don’t tell” approach, which deemphasizes the idea of vaccinations in the workplace for employers who do not want to get involved in the politics surrounding vaccinations.

Preparing to Return to Work

A key challenge employers may face is employees who do not wish to return to work. There are several factors that contribute to this challenge including:

• High Health Risk: Employees may have health conditions that will require special accommodations.
• Spousal/Familial Health Risk: People in an employee’s household may be at higher health risk, but in this case, the employer is not obligated to make accommodations.
• Child Care: Many employees have faced significant challenges managing child care in the remote work environment that will change as more employees may now return to in-person work. Though employers are not responsible for these arrangements, offering employees advance notice of a return to the office will allow them time to plan appropriately.
• Work from Home Preference: Many employees have grown accustomed to and enjoy working from home. Employers should consider allowing more flexible work arrangements, including a work-from-home policy. This may prove beneficial, especially from a competitiveness and talent retention or attraction perspective.

Other key advice from Hermon includes spending time getting to know all applicable health orders before reopening the office, consider reopening in phases to identify and solve problems in a more manageable way, and deciding ahead of time how your company will handle vaccination requirements (if any) and reporting. Employers should implement any additional necessary safety protocols prior to bringing employees back into to workplace and what kind – if any – work-from-home policy is feasible for your team.