Michigan Employers Must Now Demonstrate Infeasibility of Working from Home

On November 15, 2020, Michigan’s Department of Health and Human Services (“DHHS”) issued a new Gatherings and Face Mask Order that further limits in-person gatherings and employer operations, but does not meaningfully change requirements for most businesses. With limited exceptions, this Order prohibits all indoor gatherings at “non-residential venues” of “two or more persons from more than one household… in a shared space.”

As relevant to Michigan employers, these gathering limits do not apply to workplace gatherings that occur consistent with the Emergency Rules issued by the Michigan Occupational Safety and Health Administration (“MIOSHA”) on October 14, 2020. As you may recall, those Emergency Rules required employers to “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” Notably, MIOSHA has removed its prior informal statement that it would not second-guess employers’ business judgment regarding feasibility. That guidance has been replaced with the following direction to employers:

MIOSHA will accept a written policy which indicates that employees are not to perform in-person work activities where the work activity can be feasibly be completed remotely.

Employers are obligated to demonstrate infeasibility of remote work. 

Employers should include in the remote work determination information which covers at least:

1. Which positions/classifications report for in-person work and why they must be physically present in the workplace;
2. Reasons that this work cannot be performed remotely, this must include enough specificity to show this analysis has been performed.

This written policy may be part of the employer’s COVID-19 preparedness and response plan.  It does not have to be a stand-alone document. 

Moreover, in addition to the Order issued by DHHS last night, DHHS published an infographic that states that “manufacturing, construction, [or] other work that is impossible to do remotely” can remain open, while those workplaces where “work can be done from home” cannot open. This informal guidance is consistent with informal guidance issued by DHHS on November 6, 2020, which indicated that “employers should only permit in-person work when attendance is strictly required to perform job duties,” and which further provided that “[a] ‘strict requirement’ for in-person work means that a worker is unable to physically complete required job tasks from a remote setting…”

In short, although yesterday’s DHHS Order defers to MIOSHA’s “feasibility” requirement for when in-person work gatherings will be permitted, the informal guidance accompanying the Order continues to use different language (such as the “impossibility” and “can be done from home” standards). When deciding whether and to what extent employees will return to the office, employers should keep in mind both DHHS and MIOSHA guidance, and be aware of the Governor’s increased attention to these requirements. Michigan businesses should also review their COVID-19 Preparedness and Response Plans to ensure compliance with MIOSHA’s new guidance, as referenced above.

For more information about this order, please contact Jason Hanselman (517-374-9181 or jhanselman@dykema.com), Kyle Asher (517-374-9151 or kasher@dykema.com), or your Dykema relationship attorney.

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