Back to School: COVID-19 Round Two

Many school officials hoped for a return to the “old normal” for this school year. Some COVID-19 guidance and laws, however, remain in effect. These include the CDC public transportation face mask order, the MDHHS order on reporting school-related COVID-19 cases, the Michigan COVID-19 Employment Rights Act, and the Michigan COVID-19 immunity legislation.

School officials should also check local health department orders for any continuing COVID-19 orders and guidance. With the increasing prevalence of the COVID-19 Delta variant, new and evolving legal requirements are expected.

CDC

Although most CDC guidance is non-binding, the CDC issued a binding order on January 29, 2021 con­cerning public transportation, including school buses. This CDC order remains in effect until modified or rescinded by the CDC.

The CDC order requires that schools mandate face mask use during school bus travel. Schools also must use “best efforts” to ensure that each passenger wears a face mask when boarding and disembarking from a school bus. A face mask must cover a passenger’s mouth and nose.

The CDC order lists various exemptions from the face mask mandate, including children under age 2 and people with a disability who cannot safely wear a face mask. The CDC reserves the right to enforce the CDC or­der through criminal penalties. Civil fines also may be imposed.

MDHHS

The October 6, 2020 MDHHS order states that within 24 hours of being notified by a local health de­partment of a probable or confirmed COVID-19 case on school property or at a school function that may result in COVID-19 transmission or contraction (COVID Case), a school must post a “public notice” on a “highly visible location” on the school’s website that covers the af­fected school location. The order remains in effect until rescinded or modified by MDHHS.

The public notice must include new and cumulative COVID Case counts, as well as the date the local health department notified the school of the new COVID Case(s).

While the order does not define what constitutes a “highly visible” school website location, school officials should consider posting the public notice on the school’s homepage. If the school maintains a separate webpage for the specific location where the COVID Case occurred, such as a school building, school officials should also consider posting the public notice on that webpage.

Michigan COVID-19 Employment Rights Act

The Act was enacted on October 22, 2020. Subject to prescribed exceptions (e.g., certain health care pro­fessionals), it prohibits an employee from reporting to work if the employee tests positive for COVID-19, dis­plays principal symptoms of COVID-19, or has close contact with a person who tests positive for COVID-19. The Act further prohibits an employer from discharg­ing, disciplining, or retaliating against an employee who takes leave under the Act, opposes a violation of the Act, or reports COVID-19 health violations.

The Act does not specify leave time length but, rather, identifies circumstances that must be met before an employee returns to work. For example, an em­ployee who displays principal symptoms of COVID-19 must remain on leave until either:

  1. the employee tests negative for COVID-19; or
  2. the CDC’s recommended isolation period expires, principal symptoms have improved, and 24 hours have passed since the employee’s fever, if any, ended.

An employee is not entitled to paid leave under the Act. The employee’s absence, however, could qualify for paid leave under the Michigan Paid Medical Leave Act, Board policy, a collective bargaining agreement, a memorandum of understanding, or an individual employment contract.

COVID-19 Immunity Legislation

The COVID-19 Response and Reopening Liability Assurance Act states that a “person” is immune from a COVID-19 tort claim if the person acted in compliance with all federal, state, and local statutes, rules, regula­tions, executive orders, and agency orders related to COVID-19 that were valid at the time of the challenged conduct. A “person” includes an employer and its em­ployees, agents, and independent contractors. Im­portantly, a COVID-19 tort claim includes liability arising out of, based on, or in any way related to expo­sure or potential exposure to COVID-19, or to conduct intended to reduce COVID-19 transmission. Minor compliance deviations do not bar immunity.

The Michigan Occupational Safety and Health Act broadly states that an employer must provide each em­ployee a place of employment that is free from recog­nized hazards that are causing, or are likely to cause, death or serious physical harm to the employee. The 2020 amendments to that Act state that an employer is not liable under the Act for an employee’s workplace exposure to COVID-19 if the employer was in compli­ance with all federal, state, and local statutes, rules, reg­ulations, executive orders, and agency orders related to COVID-19 that were valid at the time of the exposure. Minor compliance deviations do not bar immunity.

It is important to monitor COVID-19 legal requirements this school year as they often evolve quickly. We will continue to keep our clients updated on COVID-19 developments.