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Returning to the workplace: What you need to know about your rights

office cubicles
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When Michigan's COVID-19 restrictions for office work ended this week, the change raised many questions for employees and employers preparing to return to work in-person.

Gov. Gretchen Whitmer announced Monday that companies are no longer required to have their employees work remotely when possible. In another major change, workers who are fully vaccinated no longer have to wear masks indoors.

"These slimmed down emergency rules will ensure Michigan workers feel safe at work," Whitmer said. "And our shared prosperity depends on the confidence and safety of our workers. And that's why it's so important we get this right."

For a look at the rights and responsibilities employers and employees have as in-person work resumes, Michigan Radio's Doug Tribou spoke with John Philo, executive director and legal director at the Sugar Law Center for Economic and Social Justice in Detroit, and by Anne-Marie Welch, an attorney with the firm Clark Hill, who works with employers. 

Who's vaccinated? 

Welch says now that the changes have been made, complicated situations will come up.

"It's going to be difficult for employers to decide how to verify who is vaccinated and who is not vaccinated," she said. "And how do you identify those folks in the workplace so that other employees aren't questioning [policies]. Why is this individual not wearing a mask? Am I safe? Why is this individual still wearing a mask?"

The U.S. Equal Employment Opportunity Commission issued updated guidance on vaccinations Friday (in section K here).  Welch also hopes the Michigan Occupational Safety and Health Administration will release a detailed FAQ document to lay out the process of confirming vaccination status.

Can employers require employees to get vaccinated?

Yes, says Welch, but there are exceptions. 

"They have to also consider accommodations for [employees] that, based on a disability or a medical contravention, cannot get the vaccination or because of a sincerely held religious belief," she said. "In my opinion, it would be really hard for an employer to argue that there is no accommodation available, considering the fact that we've been accommodating employees for the last 15 months now via wearing masks, and social distancing, or working from home."

To mask or not to mask

Philo says employees need to realize where their rights begin and end at work. 

"You do not have particularly heightened rights to privacy in your workplace with a private employer. And you certainly don't have constitutional rights along free speech or freedom of expression lines," he said. 

During the pandemic, mask requirements have been a constant source of debate and discussion, but as mask rules end, Philo pictures another scenario.

"You do not have a right to choose the conditions of your work. What you do have is the right to advocate for better conditions." -John Philo, Sugar Law Center

"What about folks who wear masks where employers say, 'Look, you don't need to wear a mask here,'" he said. "Can the employer require them to take the mask off?" 

One possible example would be a company that decides to prohbit its public-facing employees, such as receptionists or restaurant servers, from wearing masks. Philo says in that instance, an employee who wants to keep wearing a mask should find allies. 

"That person would need to act together with their other workers to try and raise the issue with their employer. If they're acting together with others regarding their workplace condition, there's some additional protections. That's through the National Labor Relations Act. Even folks who don't have a union have some protections there."

Questions of medical privacy

With questions of vaccine status and exemptions starting to come up, many people have been incorrectly citing the Health Insurance Portability and Accountability Act (HIPAA) as a reason for refusing to answer questions. But HIPAA rules to protect personal medical information apply to health providers and health plans, not employers.

"Employees who are seeking an accommodation also can't refuse to provide medical documentation to support the need for an accommodation," Welch said.

Welch says companies are within their rights to ask for proof of COVID vaccinations or documentation of a medical condition that prevents someone from getting the shots.  

Can you keep working from home? 

People's decisions about how comfortable they are doing certain activities has been a big part of pandemic life. Uncomfortable going to the grocery store? Have your order delivered. Not ready for the doctor's office? Have a telemedicine appointment instead. 

So what happens now if employees are more comfortable working from home, but their employer wants them to come back in?

"Then they'll likely be terminated," Philo says. "Realistically, you do not have a right to choose the conditions of your work. What you do have is the right to advocate for better conditions. So you can advocate with your other coworkers to try and get conditions that you think are appropriate. But ultimately in the private setting, it's an employment-at-will situation and your employer can set the terms of work."

But both Philo and Welch agree that more employers are likely to offer a remote-work option from now on.

"I think there's some benefits that employers have realized from that," Philo said.

"Because of the labor shortage, employers are a little bit hesitant to push back on some of these requests from employees as a result of wanting to attract and retain talent," Welch added. "I think that's one of the issues that's that's on the table now for job applicants and for employees."

Parents in a bind

One of the lasting memories of the pandemic will be parents struggling to deal with their kids being at home with virtual school while they're still trying to work. Many working moms dropped out of the workforce. In her announcement of workplace rule changes, Governor Wittmer praised companies that have focused on child care and work-life balance. But that praise is not a formal change to any regulations.

"As a mother of three children, [ages] 9, 9, and 5, who worked through the pandemic with them at home, I can definitely say I have a personal relationship to this experience, but there are some legal avenues available for employees," Welch said. "Employers can voluntarily follow the Families for Coronavirus Relief Act, which means that if child care is unavailable due to COVID reasons, there are now nine reasons that are covered. Then employers can provide paid leave to their employees that will be subsidized by the government."

But Philo says the Sugar Law Center sees that option differently. 

"It's been very disappointing that the federal law was allowed to expire at the end of last year, requiring paid leave in certain circumstances and that it's now voluntary. You know, voluntary law is not a law. It's just good practice for good employers. And good employers will do that. But from the employee's perspective, it's the difficult employers that you need law to intervene. So I do think there's a real gap there."

Editor's note: Quotes in this story have been edited for length and clarity. You can hear the full interview near the top of this page. 

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