Transitioning Back to the Office: A Legal Perspective for Michigan Employers
Featuring Michigan Attorney A. Vince Colella
Plans for the future of working life vary immensely from company to company. Some organizations have announced permanent work from home plans, while others have announced their intent to return to the office in waves or shifts. Some are sticking with remote work until they have more information, planning to make decisions sometime next year.
Given how much is at stake, we reached out to A. Vince Colella, founding partner of Moss & Colella, P.C., a Southfield, Michigan-based law firm, for his legal perspective on the issue.
Are employers liable if an employee gets COVID-19? What if a visitor to the office contracts it? How should employers handle employees who don’t want to return to the office?
Without further ado, here’s what we learned:
How do I protect my employees’ health and mitigate my liability as an employer?
“If you do open the office, you’ll need to follow guidelines from the CDC and OSHA closely,” Colella says. “To protect your employees and any visitors to your offices, and to mitigate your liability, you’ll need to take temperatures, keep health logs, disinfect surfaces, wear masks, practice social distancing, and so on. In Michigan, you’ll find all relevant guidelines under Executive Order 2020-70, section 11a.”
You can find the Executive Order here.
If you follow all the guidelines, being held liable for the contraction of COVID-19 by any of your employees or visitors will be unlikely. Why? As long as you’re following the recommended procedures, you’ll have done everything reasonably expected of you. Not to mention – it would be very hard to prove that your office is the ONLY place a person could have contracted the virus.
Colella adds: “Just because you won’t be held liable doesn’t mean your employee won’t be taken care of in the case that they contract the virus. They’ll be covered by the Worker’s Compensation statute.” Their medical expenses will be covered, and you’ll hold their job for them until they recover. Once they do, you restore them to their job, and they won’t be able to sue you for pain and suffering.
Colella goes on: “Of course, you’ll want to weigh your options. Will the benefits of returning to the office justify the expense and disruption brought on by new safety procedures?” For some offices – especially the really large ones – the rigors of the safety procedures may make it impossible to bring everyone back. In many cases, sticking to remote work may be the more reasonable option until the threat of COVID-19 passes.
How should employers handle employees who don’t feel comfortable returning to the office?
As you make the transition back into the office, you can expect some employees to voice concerns. Colella explains: “First, you’ve got to take their concerns seriously. People may have co-morbidities that make returning to the office a scary prospect.”
Even without co-morbidities, many people are working through a lot of fear. So, how tolerant do you need to be of people who want to stay remote? The answer depends on how reasonably you can accommodate them.
“If productivity depends on employees’ physical presence, then it’s reasonable to require their return,” says Colella. “If their job can be done remotely – and in the past few months, it’s been proven that many jobs can be done remotely – then it’s in your best interest as an employer to accommodate them.”
When can we expect work life to return to normal?
Of course, it’s the standard answer: we have no crystal ball. But be sure to check on the CDC and OSHA guidelines periodically, as they will change and presumably relax as the virus becomes less of a threat. In Michigan, Colella points out, the executive order incorporates the CDC’s and OSHA’s guidelines into law – so, if you follow the guidelines (however they change over time), you’ll be following the law.
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