Michigan Court Stops Big Changes for Sick Leave and Minimum Wage – For Now

Michigan Court Stops Big Changes for Sick Leave and Minimum Wage – For Now

 

Michigan employers have been working with the state’s Paid Medical Leave Act since 2019. For a refresher, you can access the state-required poster here. It provides a good summary of the law and the rights it confers on employees.

But Michigan employees thought they were getting even more sick leave rights (and higher minimum wage) beginning on February 20, 2023. On January 26, the Michigan Court of Appeals ruled otherwise.

Because a few things have happened since 2019, you may have forgotten how the Paid Medical Leave Act came about in the first place. Michigan had a ballot initiative for the Earned Sick Time Act, but the Legislature passed the Act on its own, thereby taking it off the ballot. Then, shortly before the Act was scheduled to take effect, the Legislature amended it to weaken many of the employee rights. Following court challenges, this was held unconstitutional, with a February 19, 2023 expiration date on the current law and the re-activation of the Earned Sick Time Act the next day. But on appeal, the Court ruled the Legislature acted properly. So, we are back to where we started with 2019 law—for now.

This is a hot issue in Michigan, and I expect further appeals to the Michigan Supreme Court. I also expect political pressure on the other branches of government. Changes to paid sick leave may still be on the horizon.

And minimum wage changes are even more likely.

The same court case and the same adopt-and-amend issues are at play with Michigan’s minimum wage laws. So, the new general minimum wage of $13.03 (with some exceptions) will NOT take effect in Michigan on February 20, 2023. But again, I expect court challenges to continue, and I expect Michigan lawmakers to take up the minimum wage through other channels as well.

THK’s employment lawyers will continue to monitor these ongoing developments and are available to assist Michigan employers with a wide variety of workplace legal issues.

Michael J. Hays, Business Counsel & Partner, THK Law, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at THK Law, LLP. His practice areas include employment law, business transactions, and real estate law. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Employment Questions for 2021 and Beyond

Employment Questions for 2021 and Beyond

 

About a year ago, most employers had to abruptly change their operations. You may have rushed out work-from-home arrangements. You may have been forced to reduce your workforce. You may have sought out PPP loans to keep your business afloat. And while you tried to maintain some business operations through all of this, you had to keep your eyes on changing state and federal laws and guidance. We hope you developed a COVID-19 plan and kept track of new paid time off requirements for pandemic-related work absences. But now that case counts seem to be coming down, that more and more people are getting vaccinated, and that we’ve all learned to live with masks, many employers have to face new choices. Below, I’ve assembled some of the leading questions employers face and some guidance for complying with the latest standards.

 

A. Can I mandate vaccines for my workforce?

The short answer is yes. If you wish to do this, consult with legal counsel to structure it properly, as you will have to allow for some exceptions under the standards of the Civil Rights Act and the Americans with Disabilities Act. But it is possible to enact a mandate, and data suggest that very few workers would qualify for exceptions. However, you should also consider the non-legal implications. If you expect some workers to refuse, are you prepared to terminate their employment? Many employers are not ready to take that step, and the latest reports suggest that few employers will make vaccination mandatory. As an alternative, some have suggested paying a premium to workers who get vaccinated. Ironically, this “voluntary” option could create a greater legal risk than a mandate. Older EEOC guidance on wellness programs suggests that if employers give more than a de minimis incentive to encourage participation, they could be discriminating against workers whose disabilities prevent them from taking part in the wellness initiative. And there is no current guidance on what amounts to “de minimis.” Even so, at least one national company announced a plan to pay $100 bonuses to vaccinated employees. Employers certainly can—and probably should—take steps to encourage vaccination, but be sure you check with your legal advisors before wading into this area.

 

B. Am I required to offer paid time off for COVID-19?

Maybe. Many employers re-set benefits at the start of a year, so plenty of workers will have access to some paid sick time in 2021. And some states (such as Michigan) mandate paid sick leave that could be used for many Coronavirus-related situations.

Further, although the paid leave rights under the Families First Coronavirus Response Act expired December 31, 2020, there are circumstances where that can extend to March 31, 2021. And some lawmakers are exploring further extensions. Even without new legislation, employers should also be mindful of unpaid leave rights under the FMLA and other controlling policies on workplace leave.

 

C. What safety precautions should I have in my workplace?

The primary considerations are the things we have been hearing for months now: social distancing, face coverings, and frequent hand washing. But OSHA recently published comprehensive standards on what that means. See the latest guidelines here.

 

D. Can I enforce mask mandates on my clients and customers?

Yes. You have a duty to reasonably accommodate business patrons whose medical conditions prevent them from wearing a face covering. But that does not necessarily mean letting them into your place of business unmasked. The accommodation could be conducting business online, sending a (mask-wearing) representative into your business on behalf of the customer, or having the person wear a different kind of face covering.

 

E. How should I approach the future of work-from-home?

The answer to this will vary greatly from company to company. Some employers are eager to get their workforce back into the office and will be looking for ways to scale back, or even eliminate, working from home. Others will find the forced experiment of 2020 pushing them towards a business model that encourages telecommuting. And still others will fall in between. As a general rule, employers have a lot of latitude in setting the terms of employment, but anti-discrimination laws figure into the equation. Under some conditions, telecommuting could be a reasonable accommodation for a worker with a disability. The option to work from home could also be considered a perk of employment, so you will want to be sure it is offered on a fair basis. The same could be said of the option to not work from home. In other words, you will need to take steps to ensure workspace assignments are made in a non-discriminatory manner.

 

F. Where can I find more help?

We’ve already pointed you to the OSHA website, and useful guidance is also available from the EEOC. For employers with memberships in local or national human resources organizations, your membership likely entitles you to helpful publications on these and many other issues. And our employment lawyers at Tuesley Hall Konopa are always ready to help. As our communities move into the next season of this pandemic, we look forward to working with you to promote legal compliance and help keep everyone healthy and safe.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include employment law, business transactions, and real estate law. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

COVID-19 Planning for Employers

COVID-19 Planning for Employers

I Love it When a Plan Comes Together: COVID-19 Planning for Employers

Most episodes of the 1980s hit show, The A-Team, involved the team cobbling together some super-weapon from a collection of spare parts that they would use to defeat the bad guys. After securing their victory, team leader, Col. John “Hannibal” Smith, would often say, “I love it when a plan comes together . . .”

As employers have been cobbling together their defenses of hand sanitizer, disinfecting wipes, and face masks, they need to also work on crafting a plan. In fact, Indiana Governor Eric Holcomb’s latest Executive Order says, “On or before May 11, 2020, all Hoosier employers shall develop a plan to implement measures and institute safeguards to ensure a safe environment for their employees, customers, clients, and members. The plan shall be provided to each employee or staff and posted publicly.” As you develop your company’s plan, here are some important considerations:

  • It doesn’t have to be lengthy. Written workplace policies serve many goals, but the most important one here is communication. Use this plan to send clear messages; don’t bog down your workforce with too many details.
  • It should be flexible. None of us have ever lived through a pandemic like this. Things have changed a lot in recent weeks and months and are likely to keep changing. Let your employees know that current workplace procedures are temporary and are likely to change.
  • It must take safety seriously. Read the relevant CDC guidance; study other reputable local, regional, and national resources to determine concrete steps your company can take to do its part in preventing the spread of COVID-19. Seek professional advice if you need it.
  • It must respect other relevant employment laws. All the existing rules against discrimination, harassment, and retaliation—along with laws requiring reasonable accommodations for disabilities and religious beliefs—continue in force. Congress recently passed new laws providing paid sick leave and family leave to most workers, and various other state or federal employment laws could be implicated by your company’s COVID-19 response. Keep these considerations in mind.

Having a plan is required in Indiana, but it is a good practice in other states, too. Tuesley Hall Konopa attorneys are available to assist businesses and individuals in Indiana or Michigan with a variety of legal needs. Visit our website at thklaw.com for a comprehensive list of our legal services.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Partner, Michael J. Hays, is an employment law and civil litigation attorney at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, real estate transactions, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email at mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Work in the Time of Coronavirus

Work in the Time of Coronavirus

If you’ve read Love in the Time of Cholera, you know that running a business in 2020 is nothing like that. Employers addressing this unprecedented pandemic have lots of questions. Below are some quick tips on sick leave, layoffs, medical evaluations, and other issues. As this crisis unfolds, Tuesley Hall Konopa will remain open to address your legal needs. Coming changes might affect our in-person contact, but our lawyers and other professionals will stay engaged to serve our clients. In the meantime, consider the following guidance, which is current as of March 16, 2020:

A. It’s okay to stick with your normal paid time off policies for now, but be ready for changes.

The House of Representatives passed the Families First Coronavirus Response Act on March 14th. If the Senate passes it, and the President signs it, then employees will have a guarantee of 14 sick days relating to COVID-19, easier access to FMLA leave, and other benefits. We are waiting to see the final law before offering more detailed guidance.

As of today, you may insist that employees away from work for Coronavirus reasons follow normal paid time off policies. We advise that you do not penalize employees under normal attendance policies whose absences are caused by the pandemic. We also recommend employers exercise some flexibility and understanding with required doctors’ notes.

B. If mass layoffs may be coming to your business, now is the time to start planning.

The federal WARN Act generally requires 60 days’ notice for “mass layoffs” by employers with 100 or more employees. Please seek legal advice because the counting of employees can be confusing. Employers are to provide a specific written notice to affected workers and to certain local government offices.

A “mass layoff” only falls under the Act if it will be for 6 months or more, but if there is a risk at least some employees will have their hours reduced by at least 50% for at least six months, then the most conservative advice would to be give WARN notices even if you hope and expect any layoffs will be shorter.

WARN is a complicated law with exceptions for “natural disasters” and “unforeseeable business circumstances” that might apply to COVID-19. Generally, these exceptions spare the employer liability for shortening the notice, but notice is still required. Given the unprecedented nature of this outbreak, Congress may intervene to modify the WARN Act. Even so, if the size of your workforce and the size of your layoff implicates WARN, you should consider giving as much WARN notice as possible—even if it’s only a few days.

C. Employers will have to be creative.

There is a “general duty” under OSHA for all employers to protect their employees from workplace hazards. You may rely on this to force employees to stay home from work if they have flu-like symptoms, have likely exposure to Coronavirus, or present other risks. You may also:

  • Consider new standards for work-from-home to mitigate risks;
  • Inform your employees of any exposure risk they may have faced at work, but without revealing confidential medical information about affected employees;
  • Consider temperature screenings before allowing employees to return to work but seek guidance as other “medical examinations” could implicate the Americans with Disabilities Act.

D. Be thinking about “force majeure.”

Using a Latin phrase, the law has long allowed a contracting party to avoid fulfilling a contract if unforeseeable circumstances make performance impractical or impossible. Historically, things like wars, natural disasters, and labor strikes have been considered force majeure events. Most legal scholars believe the COVID-19 outbreak will fit that standard. In fact, the NBA is already talking of invoking this rule to avoid paying players.  Depending on the terms of your agreements, your business may be able to rely on force majeure to avoid certain contracts. But your business partners might be able to do the same to you. This is another area where advance planning and careful guidance are in order.

E. Stay in touch.

The news media and your inbox are flooded with Coronavirus information. That won’t stop any time soon. As you try to run your business while staying abreast of public health needs, contact Tuesley Hall Konopa for legal guidance in this evolving situation.

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Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Importance of Depositions in Business Litigation

Importance of Depositions in Business Litigation

Most organizations find themselves in litigation at some point in the life of the business. Maybe a disgruntled former employee brought a claim, or you had to go after a customer who didn’t pay—or a supplier who didn’t deliver. Maybe a contract went wrong, or a real estate deal turned sideways. Maybe you needed to enforce a non-compete or you hired someone under a non-compete and got drug into that dispute. Whatever the reason, most businesses will find their names in court documents on occasion. When that happens, you hire attorneys to advise you and to represent your interests in the courtroom. Every case is different, and every client has unique motivations, but most of the time, the instructions to the lawyer are something along the lines of: “Get this thing over quickly, cheaply, favorably, and with as little disruption to the business as possible.”

The work of a business litigator is to partner with the client in achieving those aims as the dispute travels through its various stations along the journey to resolution. Often, an important stop on the way involves depositions. Readers of this blog probably know what a deposition is, either through personal experience or from memories of Bill Clinton. But for the uninitiated or those who may have forgotten, a deposition is a when an attorney questions a witness under oath as part of the pre-trial fact-gathering process. It generally takes place in an attorney’s conference room and often lasts several hours. I tell clients a rough average is 4 hours, but I’ve sat through depositions twice that long, and I’ve also seen quick depositions that take less than an hour. I’ve never met a witness who enjoys being deposed. Even expert witnesses who do it regularly dislike depositions. But they are a critical part of the litigation process. Understanding a little more about their purpose and function may help prepare your business for its next litigated dispute.

First, if you or someone else in your organization is going to be deposed, it will be costly. The witness needs to prepare well before the deposition itself. The day of the deposition is likely to be long. And you will be paying an attorney to advise, assist, and advocate for you throughout the process. You will also be losing productivity while the company’s witness tends to these matters instead of running the business. Whole books have been written about the art of preparing for a deposition. I won’t repeat those strategies here, but you should lean on your attorney for guidance in this important area.

Second, depositions may be unavoidable. Parties to a lawsuit generally have a right to investigate facts relevant to the lawsuit, including questioning knowledgeable witnesses. You would not want anyone limiting your rights in that regard, and it is generally hard to limit the other party’s rights, too. But that’s not to say your opponent has an unlimited ability to question anyone it likes. The law says that any discovery process must be “proportional to the needs of the case.” And a strong body of law protects “apex employees,” such as corporate executives, from being deposed when they were not personally involved in the matters covered by the lawsuit. A good business litigator may also be able to negotiate other ways of limiting or delaying the burden of depositions.

Third, depositions have an outsized position in the mind of many attorneys. A lot of statistics are available on the so-called “vanishing” civil trial, but in general, an average civil case stands around a 95% (or greater) chance of being resolved without a trial. The reasons for this have been debated elsewhere, but one consequence is that many lawyers treat the opponent’s deposition as the showcase event in a lawsuit. If you are paying a lawyer to take a deposition on your behalf, you should instruct him or her to guard against this selfish tendency. And if someone in your organization is going to be questioned by an opposing lawyer, you should be prepared that this force may be at work.

Finally, there is no denying that depositions are powerful. When a witness is “locked in” to a certain line of testimony, that narrative will control the rest of the lawsuit. Likewise, when a party is forced to explain his or her position under the stress of adverse questioning, everyone gets a good sense of the strengths and weaknesses of that position. Deposing key witnesses is almost always essential in the rare cases that go to trial, and it is often necessary to facilitate a settlement or a key pre-trial motion in other cases.

Considering all this, nearly everything about depositions runs counter to the goals most clients pursue of resolving their litigation quickly, inexpensively, and without disrupting the business. But clients also want to resolve the dispute favorably. Finding the right balance of when and how depositions fit into these objectives is something your business litigator should be discussing with you. Make sure you are comfortable with the advice you receive on that score and that your organization is read when depositions need to be taken or defended.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.