On December 29, 2020, Governor Gretchen Whitmer signed into law Enrolled Senate Bill 1258 (the “Act”) which takes effect immediately.
Among other things, the Act resolves inconsistencies between PA 238 and current guidance from the Centers for Disease Control and Prevention (CDC) relating to how long an individual should quarantine after coming into contact with someone who is COVID-19 positive. Since MIOSHA and the Department of Health and Human Services (DHHS) also follow the CDC guidance, the new law will harmonize the law with how those agencies are viewing employees who are returning to work. The inconsistencies between PA 238 and the CDC guidance have caused quite a bit of confusion for employers, so the Act should be a welcome relief.
As reported in our December 4, 2020, eAlert, which you can find here, the CDC provided a new definition of close contact and while still recommending a 14-day quarantine period, allowed for asymptomatic individuals who were in close contact with someone positive for COVID-19 to end their quarantine:
- After day 10 if they did not take a test; or
- After day seven if they received a negative test result (the test should not be administered more than 48 hours before the end of the seven-day period).
That definition caused inconsistency with PA 238 which had a different definition of close contact and required employees who had close contact to “not report to work” until 14 days had passed.
To resolve that inconstancy, the Act now defines “close contact” as “that term as defined in the United States Centers for Disease Control and Prevention's guidelines regarding COVID-19 at the time the contact occurred.”
The Act also adds definitions of:
- “Infected with COVID-19” which means “displaying the principal symptoms of COVID-19 or having tested positive for COVID-19 prior to the end of the isolation period.”
- “Isolation Period” which means “the recommended number of days that an individual be in isolation after the individual first displays the principal symptoms of COVID-19 as prescribed” in the CDC guidelines.
- “Quarantine Period” which means “the recommended number of days that the individual be in quarantine after the individual is in close contact as prescribed” in the CDC guidelines.
The Act retains the definition of “principal symptoms of COVID-19,” but allows that definition to change if otherwise “provided by order of the director or chief medical executive of the Michigan Department of Health and Human Services.”
For those who test positive for COVID-19, the Act now provides that an employee must not report to work until “they are advised by a health care provider or public health professional that they have completed their isolation period,” or, all of the following are met:
- If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medications.
- The isolation period has passed.
- The employee’s principal symptoms of COVID-19 have improved.
- If the employee has been advised by a health care provider or public health professional to remain isolated, the employee is no longer subject to such advisement.
For those with the principal symptoms of COVID-19 but who have not yet tested positive, the Act provides that an employee shall not report to work until one of the following are met:
- A negative diagnostic test result has been received.
- ALL OF THE FOLLOWING APPLY:
- The isolation period has passed since the principal symptoms of COVID-19 started.
- The employee’s principal symptoms of COVID-19 have improved.
- If the employee had a fever, 24 hours have passed since the fever subsided without the use of fever reducing medication.
For those employees who have had close contact with an individual who tests positive for COVID-19, the Act provides that the employee shall not report to work until one of the following is met:
- The quarantine period has passed since the employee last had close contact with the individual.
- The employee is advised by a health care provider or public health professional that they have completed their period of quarantine.
Importantly, the Act eliminates any quarantine requirement for employees who had close contact with someone who merely has symptoms of COVID-19. Those employees can continue to report to work.
Finally, the Act includes some changes to when the list of exempted workers, such as health care workers, first responders, corrections personnel and certain child care workers can continue to work. Importantly, in order to continue working, the worker must be “strictly necessary to preserve the function of a facility where cessation of operation of the facility would cause serious harm or danger to public health or safety.” Added to the list of workers who can be exempted from self-quarantine are certain workers in the energy industry and a worker that the director of the Department of Health and Human Services has identified as necessary to ensure continuation of essential public health services, enforcement of health laws or to avoid serious harm or danger to public health or safety.
While fairly extensive and somewhat complicated, the changes made by the new law will allow employers to abide by a unified set of quarantine standards and should simplify the return to work process for most of them. Employers in the health care industry, however, will need to be mindful that they will have a higher standard to meet to return some employees to work without quarantine. If you have any questions about the Act or other COVID-19 related issues, please contact any member of Warner’s Labor and Employment Practice Group.