Employers in Michigan can breathe a sigh of relief in the wake of today’s opinion from the Michigan Court of Appeals ruling that the Michigan Legislature acted appropriately when it followed an “amend and adopt” strategy. Prior to that ruling, Michigan employers were faced with a February 20, 2023 deadline by which they would have to offer employees onerous earned sick time, as well as a higher minimum wage, as a result of an initiative that was adopted in 2018. The initiative-led legislation was amended by the legislature in a lame-duck session that resulted in a paid leave law and a minimum wage that were much less hostile to employers.
Michigan Supreme Court Recognizes Protection Under State Law Against Discrimination Based on Gender Identity and Sexual Orientation
On Thursday, July 28, 2022, the Michigan Supreme Court issued its opinion in Rouch World, LLC v. Department of Civil Rights, finding in a 5-2 decision that Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”) protects against discrimination based on gender identity and sexual orientation. While so holding, the Court overturned precedent set nearly 30 years ago by the Michigan Court of Appeals in Barbour v. Department of Social Services. That court had relied upon then analogous federal precedent in holding that the same statute did not extend protection on the basis of sexual orientation, as “sex” in the context of ELCRA meant only “gender discrimination, not discrimination based on sexual orientation.”
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EEOC Limits Permissible Workplace COVID Testing In Its Most Recent Guidance
As infections during the worldwide COVID pandemic have waxed and waned, and as vaccinations and new treatments for COVID infection have been introduced, employers have begun to see a substantial increase in the number of employees that have returned to work. That, in turn, has caused many employers to re-evaluate their COVID testing protocols to determine who may return to the office and when.
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Off Again: United States Supreme Court Blocks OSHA COVID-19 ETS
On January 13, 2022, the United States Supreme Court issued its opinion on the application for stay filed in National Federal of Independent Business v. Department of Labor. In that opinion, a six-member majority of the Court ruled that the Occupational Safety and Health Administration (OSHA) had exceeded its authority in issuing an emergency technical standard requiring the vaccination of employees of larger employers.
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On Again; Sixth Circuit Lifts Stay on OSHA COVID-19 ETS
Late Friday, the United States Court of Appeals for the Sixth Circuit issued an Order and Opinion lifting the stay that previously had been entered by the United States Court of Appeals for the Fifth Circuit which had prevented the OSHA COVID-19 emergency technical standard (the “ETS”) that applied to employers with 100 or more employees from going into effect. This reversal puts many employers in the position of having to immediately restart compliance efforts that may have been paused during the pendency of the stay.
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OSHA Releases Highly Anticipated Vaccine Mandate ETS
Nearly two months after President Biden unveiled his COVID-19 Action Plan, the federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) that requires all employers with at least 100 employees to establish, implement, and enforce a written policy mandating that each employee either be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing and wear face coverings indoors. OSHA clarifies that the ETS is meant to strongly encourage employers to stipulate that its employees must be fully vaccinated against COVID-19, but includes a narrow testing and face covering exception—at least for now.
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MIOSHA Issues Revised Emergency Rules Governing Return To Work
Although the State of Michigan announced several weeks ago that employers would be permitted to require employees to return to “in-person” work, the emergency rules issued by MIOSHA prohibiting in-person work remained in place. Those emergency rules were rescinded earlier today and replaced with a new set of emergency rules that will remain in effect until October 14, 2021.
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EEOC Issues Technical Assistance Regarding Vaccination and Anti-Discrimination Laws
Ever since the beginning of the COVID-19 pandemic, the promise of an effective vaccine has been held out as a key component to a return to normality. Now, with the Pfizer vaccine approved, and the Moderna vaccine on the path to approval shortly, employers have begun struggling to determine what their legal obligations are towards employees who refuse to be vaccinated. While we have addressed these issues recently in a Dec. 16 webinar, the EEOC issued guidance to employers in the form of a Technical Assistance Bulletin to clarify how employers should address employee objections to vaccination that arise under Title VII of the Civil Rights Act, the Americans With Disabilities Act, or the Genetic Information Nondiscrimination Act. While that guidance is not binding upon employers or the Courts, it is nonetheless useful to employers contemplating the legal restrictions that may exist in addressing vaccination in the workplace.
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Michigan Issues Emergency COVID-19 Workplace Safety Rules With Immediate Effect
The Emergency Rules Were Issued In Response to the Michigan Supreme Court’s Decision Invalidating Governor Whitmer’s Executive Orders
The Michigan Supreme Court’s decision that Governor Whitmer lacked the power to extend her declaration of emergency past April 30, 2020 resulted in the invalidation of numerous emergency orders, including those that imposed specific obligations upon employers to provide workplaces safe from potential coronavirus exposure. To fill that gap, on Wednesday, October 14, the Department of Labor and Economic Opportunity issued emergency rules under the state Administrative Procedures Act that impose several requirements upon employers in the state of Michigan. Those rules, which are issued under Michigan’s Occupational Safety and Health Act, are effective immediately and remain in effect for six months.
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U.S. Department of Labor Issues Revised Regulations Implementing FFCRA Leaves Following New York Court’s Decision
We reported last month on a decision by a New York federal court that rejected portions of the Department of Labor regulations implementing the Families First Coronavirus Response Act (“FFCRA”) leaves signed into law earlier this year. The FFCRA created rights for employees of employers with fewer than 500 employees, and all public employers, to take up to 10 days of paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) for various COVID-19 related reasons, and another 10 weeks of paid leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) for leaves necessitated by COVID-19 related school and day care closures. The court held that the following FFCRA rules were improper:
- A rule allowing for intermittent FFCRA leaves only if the employer and the employee agreed to the use of leave time intermittently;
- A rule denying FFCRA benefits to employees who are unable to work due to FFCRA-covered reasons when the employer does not have work for those employees (for example, when the employee would be on furlough status due to a COVID-related reduction in force);
- A rule allowing employers of health care providers to exclude a broad range of employees from the FFCRA’s benefits; and
- A rule allowing employers to require documentation of the need for FFCRA leave time prior to the leave’s commencement.