On this page I will discuss two areas of COVID-19 law in Michigan: 1) Estate planning during the pandemic. 2) Worker quarantine obligations and paid leave. The COVID-19 law is fast evolving both in terms of citizen responsibilities/rights and paid leave.
Pandemic estate planning in Michigan
Pandemic estate planning in Michigan requires a person to self-evaluate their health risk related to the pandemic. Once this individual risk assessment is completed, the estate plan should address these risks. COVID-19 law includes a good estate plan in the event of an untimely death.
Comorbidities and COVID-19
Here is the list of known and likely comorbidities that contribute to COVID-19 deaths or severe illness. Every person afflicted with these medical conditions should have basic estate planning in place. The CDC categorizes its comorbidities list based on evidence/study strength uncovering heighten risk:
Under the “Strongest and Most Consistent Evidence” category are the following medical conditions:
2. Chronic kidney disease
4. Heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies.
5. Obesity (BMI ≥30)
6. Severe Obesity (BMI ≥40)
8. Sickle cell disease
10. Solid-organ transplantation
11. Type 2 diabetes mellitus
Under the “Mixed Evidence” category are the following medical conditions:
2. Cerebrovascular disease
4. Use of corticosteroids or other immunosuppressive medications
Under the “Limited Evidence” category are the following medical conditions:
1. Bone marrow transplantation
3. Immune deficiencies
4. Inherited metabolic disorders
5. Liver disease
6. Neurologic conditions
7. Other chronic lung disease
8. Overweight (BMI ≥ 25, but ＜30)
11. Type 1 diabetes mellitus
Each family and individual must assess their risk level associated with the SARS-CoV-2 virus based on their individual conduct and susceptibility to developing a severe COVID-19 infection. SARS-CoV-2 isn’t exactly a novel virus anymore. Transmission of the SARS-CoV-2 occurs in two ways, contact with infectious bodily fluids and prolonged contact with respiratory droplets from a contagious person. There is both asymptomatic virus transmission and presymptomatic transmission. In both of these categories, the infected person doesn’t realize that they are infected or spreading the virus to the people around them. Face coverings, masks, represent a public policy to limit asymptomatic and presymptomatic SARS-CoV-2 transmission. Wearing mask limits the number of respiratory droplets that an asymptomatic or presymptomatic person sheds into the environment.
The primary environment in which COVID-19 spreads is within an enclosed room with poor airflow. Whether a person is within such an environment is probably the best indicator for an individual’s risk associated with catching SARS-CoV-2. For most people, asking the following question will determine their individual risk level. Am I around people for 15 minutes within an enclosed room/environment. If the answer is yes, then the chances of catching COVID-19 is very real. The two primary means to mitigate infections from respiratory droplets are ensuring that every person within the enclosed environment is wearing a mask and airflow within the enclosed environment. For the most part, in Northern Michigan, the vast majority of people wear a mask within the public environment. People wear masks in stores, offices, and schools. Outside of the public environment is where most transmission is occurring. Places like inside cars and inside private residences. Intimate contact is also likely to spread SARS-CoV-2.
Once a family member falls ill and has symptoms such as coughing, sneezing, and runny nose, the contact with bodily fluids will also transmit the virus. This is why there is a high infection rate among first responders and medical personnel. The primary way to mitigate transmission to family members when someone has symptoms of COVID-19 is to ensure there is airflow in the infected person’s room and the infected person wears a mask to capture the bodily fluids.
A simple will during this pandemic
The young typically do not bother with estate planning or a simple will because they are healthy, their spouse is also the same age, and the likelihood of both parents dying simultaneously is low. This pandemic has changed the playing ground. COVID-19 strikes predominately the old, but this disease also affects the young with underlying health issues, such as smokers, people with diabetes, and people who are obese. Younger families that have a parent living with an underlying health condition should have a simple will in place.
The simple will is not a complicated document; it is a will with only necessary provisions that totals approximately 3-10 pages. Within a will, the decedent declares two very important fiduciaries; the guardian and the conservator for their children. The guardian is the person responsible for the day-to-day care of the deceased parent’s children. The conservator is the person responsible for the financial affairs of the children. Ordinarily, the nominee of the deceased for guardian and conservator has priority over an appointment by the Probate Court. Herein lies the peace of mind for the parents; they get to choose the guardian and conservator for their children. The selection of a guardian and conservator prevents a prolonged probate battle between relatives over the care of their children.
Families with two or more children, children with a wide age difference between them, may need a testamentary trust for the care of their youngest children. If there is a significant age gap between the decedent’s children, it may be necessary to create a trust that will hold the parent’s estate for the minor child’s care until the youngest child reaches 18 or 21 years of age. Most parents leave their estate to their children equally. However, an equal split in the parent’s estate at death may deprive the youngest child of the funds necessary to live the same lifestyle as the older children. If the parent’s estate isn’t large enough to split at the parent’s death without harming the youngest child’s future lifestyle, a shared testamentary trust is the best option.
A financial power of attorney
A financial power of attorney is important during the pandemic due to the long haulers and their brain fog. A financial power of attorney allows the agent to manage the principal’s financial affairs. With no financial power of attorney in place, if someone does experience debilitating “mind fog” and they can not manage their financial affairs, the probate court will have to appoint a conservator for the afflicted person.
If a parent becomes ill or has a serious accident, your family will appreciate the flexibility of a power of attorney. The durable power of attorney allows your agent, typically your spouse, to act quickly on behalf of the principal. Without a power of attorney, your spouse would have to petition the probate court for a conservatorship.
A medical power of attorney
This document is a power of attorney that addresses medical conditions for the principal. Within this document, the principal issues medical directives to the agent regarding the principal’s end of life decisions. This document permits the principal to direct their care while the principal is in a coma or on life support. This document empowers the agent, based on the principal’s instructions, to direct medical care for the principal, including ceasing all medical care and allowing the principal to pass away. A medical power of attorney during this pandemic means that one must weigh their current quality of life and their expected quality of life after a severe COVID-19 infection. The primary instrument of life support for COVID-19 is a ventilator. How much quality of life is someone willing to forgo to survive a severe COVID-19 infection? This inquiry is different for each of us. Review these articles to start on this inquiry. Long Term Covid Effect(Mayo Clinic) Click Here. Recovery After Severe Covid(U of M) Click Here.
Employment rights in Michigan COVID-19 law
A large part of COVID-19 law deals with employer and employee interactions. The main response to this infectious disease by the federal government is paid leave for people that normally do not have paid leave through their employer. The federal government wants people to act responsibly when exposed to an infected person. On October 22nd, 2020, Legislation was passed and signed by the Governor which establishes rights and responsibilities for employees and employers. Click here to view the statutes MCL 419,401-419.412 titled “COVID-19 Employment Rights.” These statutes parallel Governor Whitmer’s executive orders with a few notable exceptions. MCL 419.403 Below is the text of the statute:
(1) Except as provided in subsection (2), an employer shall not discharge, discipline, or otherwise retaliate against an employee who does any of the following:
(a) Complies with section 5, including where an employee who displays the principal symptoms of COVID-19 does not report to work and later tests negative for COVID-19.
(b) Opposes a violation of this act.
(c) Reports health violations related to COVID-19.
(2) Subsection (1) does not apply to an employee described in section 5 who, after displaying the principal symptoms of COVID-19, fails to make reasonable efforts to schedule a COVID-19 test within 3 days after receiving a request from their employer to get tested for COVID-19.
Notice that subsection (2) creates a right for an employer to request an employee seek out a COVID-19 test when the employee displays the principal symptoms of COVID-19, as defined in MCL 419.401. Click here to view the symptoms and statute.
In short, if an employee develops symptoms of COVID-19, and informs their employer and their employer requests a COVID-19 test, the employee has three days to schedule a test or face termination of employment. This employer’s right to make employees seek a SARS-CoV-2 test is new to COVID-19 law in Michigan. This lawyer recommends that any employee in this situation secure documentation related to seeking a test.
Statutory claim based on COVID-19 employment rights in Michigan.
The statutes create a civil action against an employer for failing to follow the procedures and for retaliation or wrongful discharge. This is good for COVID-19 law and employees because now an employee can seek justice through the court and not administrative agencies. This civil suit has minimum damages of $5000.00. The COVID-19 Employment Rights statutes apply retroactively back to March 1st, 2020. If the reader believes they have experienced employment retaliation, demotion, or discharge related to COVID-19 then the reader should call immediately for a legal review of their case. Michigan added a new claim against employers, a welcomed addition to COVID-19 law.
Family First Coronavirus Relief Act(FFCRA) in Michigan
The FFCRA is federal legislation that provides paid leave for COVID-19 related quarantines and illness. This legislation is set to expire on December 31st, 2020, but will likely extend into 2021 in some fashion. The FFCRA has two main benefits for workers. The Emergency Paid Sick Leave Act (EPSLA) and expanded FMLA. The EPSLA provides up to 80 hours of paid leave for workers absent due to COVID-19 related circumstances. Expanded FMLA benefits include up to 12 weeks of paid leave for COVID-19 related issues. There are 6 defined situations in which a worker will be eligible for EPSLA benefits. The worker is A) Subject to a federal, state, or local quarantine or isolation order related to COVID-19; B) Has been advised by a health care provider to quarantine because of COVID-19; C) Is experiencing COVID-19 symptoms and is seeking a medical diagnosis; D) Is caring for a person described in A or B; E) Is caring for his or her child whose school or place of care is closed(or child care provider is unavailable) due to COVID-19; F) Is experiencing any other substantially-similar condition specified by the US Department of Health and Human Services. An important point related to FFCRA and EPSLA that every Michigan employee needs to know. A self-quarantine will cause a worker to be ineligible under the FFCRA and EPSLA to receive paid leave. Click here. Furthermore, the Department of Labor has granted an employer the right to request documentation for paid leave under the FFCRA. The requirement of documentation is absent within Michigan’s “COVID-19 Employment Rights” statutes. Michigan statute requires a person to quarantine upon close contact with a COVID-19 infected person, with no mention of documentation from a health care provider recommending such a quarantine. To ensure EPSLA paid leave, this lawyer recommends that a worker subject to a COVID-19 quarantine should insist on written documentation from a Health Care Provider recommending a quarantine.
I need help applying for Family First Coronavirus Relief Act (FFCRA) benefits
The Department of Labor (DOL) publishes a workplace flyer. Click here to see this flyer. Another great resource is the DOL “Determine Your FFCRA Eligibility.” Click here. Finally, there is the DOL “Questions & Answers” page for FFCRA. Click here. I am willing to help people with their pandemic benefits for $50.00 an hour.
Northern Michigan Pandemic Resources
Covid-19 law is fast evolving. The best resources for protecting yourself are provided by local organizations and media.
Grand Traverse Health Department COVID-19 dashboard. Click here. This page provides the percentage positive for COVID-19 tests in Grand Traverse County.
District Health Department #10 COVID-19 dashboard. Click Here. District Health Department #10 covers the following counties: Crawford, Kalkaska, Wexford, Manistee, Newago, Lake, Mason, Mecosta, Missaukee, and Oceana.
Health Department of Northwest Michigan COVID-19 dashboard. Click Here.
Benzie-Leelanau Health District COVID-19 dashboard. Click Here.
Munson Healthcare COVID-19 quick links & data. Click Here. This resource provides the number of hospitalized COVID-19 patients across the region. Harvard COVID-19 HotSpot Map. Click Here. This is a good resource to compare the pandemic across the country. Be sure to view the map by county.