New Michigan executive order addresses time off and employment protections

In an April 3, 2020 Executive Order, Executive Order 2020-36, Michigan Governor Gretchen Whitmer has refined the requirements of the initial Stay Home, Stay Safe Executive issued on March 24. Under the Stay Home, Stay Safe order, critical infrastructure workers for essential businesses along with workers necessary to maintain minimum basic operations for other businesses are permitted to continue to work at the physical location. The new executive order addresses when those employees should remain home due to COVID-10 related circumstances and provides protection for workers who follow those time frames.  

Employees with COVID-19 symptoms or positive tests

The executive order indicates that individuals who test positive for or display any of the “primary symptoms” of COVID-19 “should” remain at home or in their place of residence until:

• Three three days have passed since their symptoms have resolved

      And

• Seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.  If the test comes back negative the requirements are dropped.

The principal symptoms are identified as an “atypical cough, fever, and atypical shortness of breath.”

Note the executive order uses the word “should” not “must,” meaning it is advised that an individual follow the directive, but it is not mandatory.

Employees in “close contact” with individuals with symptoms or a positive test

The Executive Order also includes an advisory addressing time off for an employee who has been in “close contact” with another individual who tests positive for or displays the principal symptoms of the COVID-19.   Under those circumstances, the employee should not to report to work until:

• Either 14 days have passed since the last close contact with the sick or symptomatic person.

      Or

• The symptomatic individual is tested negative for the COVID-19 virus.

The Executive Order defines “close contact” as “being within approximately six feet of an individual for a prolonged period of time. This would be caring for, living with, visiting, or sharing a health care waiting room with an individual.” Notably, health care professionals, workers at health care facilities, first responders, child protective service employees, workers at child-care institutions, and workers at correctional facilities are not covered by this provision if the employers’ occupational health rules allow them to work.

Protection against discharge, discipline, and retaliation

Moving away from the advisory language, the executive order specifically prohibits employers from discharging, disciplining, or retaliating against an employee who is absent during the time periods described in the executive order.  

Employers are also prohibited from discharging, disciplining, or retaliating against an employee for not complying with an employer requirement to document that the employee or the person with whom the employee had close contact with had symptoms of the disease. This provision is at odds, however, with the requirements of the Families First Coronavirus Response Act, which allows employers to require medical documentation to support use of emergency paid sick leave.  

Early return to work

An employee who returns to work before completion of the specified time periods loses the employment protections of the Executive Order.  Further, employers may still discipline or discharge employees who:

• Decline to return to work after the required time off.
• Consent to discharge or discipline.
• Are otherwise discharged or disciplined for a lawful reason.

Time treated as Paid Medical Leave Act

Employers are required to  treat the an employee taking the leave time as if the employee was taking medical leave under Michigan’s Paid Medical Leave Act. The time may be unpaid if no accrued time is available and the provision applies even to employers under 50 employees who are too small to be covered by the Michigan Paid Medical Leave Act.   

No right to private action

Given its broad nature and the opportunity for abuse, the executive order does offer employers some relief by providing that employees do not have the right to bring a private lawsuit against an employer.   Rather, the Michigan Department of Labor and Economic Opportunity is authorized to enforce the executive order.  Employers should contact their McDonald Hopkins employment law counsel if they have questions regarding the parameters of the Executive Order and how it intersects with the Families First Coronavirus Response Act.

The McDonald Hopkins Labor and Employment Response Team will continue to monitor developments and provide additional updates on employment issues impacted by the COVID-19 crisis.