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Apr 2020
06
April 06, 2020

Governor Whitmer Prohibits Retaliation Against Employees Who Stay Home Because They (or Someone They Have Close Contact With) Have COVID-19 or Its Symptoms

On Friday, April 3, 2020, Governor Whitmer signed Executive Order 2020-36, aimed at “protecting workers that stay home, stay safe when they or their close contacts are sick.”

Under the Order, employers are prohibited from discharging, disciplining or retaliating against employees who stay home if they meet certain criteria outlined in the Order, including: 
 
  • Individuals who test positive for or display one or more of the principal symptoms of COVID‑19. These individuals should stay home (with limited exceptions not including work) until: (a) three days have passed since symptoms have resolved; (b) seven days have passed since their symptoms first appeared or they were swabbed for the positive test; or (c) they test negative. 
     
    • Principal symptoms of COVID‑19 under the Order are fever, atypical cough or atypical shortness of breath.
     
  • Individuals who have had close contact with someone who tests positive for COVID‑19 or displays one or more of the principal symptoms of COVID‑19. These individuals should stay home (again, with limited exceptions not including work) until either: (a) 14 days have passed since their last close contact with the sick or symptomatic individual; or (b) the symptomatic individual has received a negative test result. 
     
    • Close contact means being within approximately 6 feet of an individual for a prolonged period of time.
    • Exceptions. This provision does not apply to health care professionals, workers at health care facilities, first responders, workers at child care institutions, workers at correctional facilities and child protective services workers.

Violation of the recommendation removes the protection. If an employee returns to work before the time periods set forth above, they are not entitled to the protection against retaliation, discipline or discharge.
The Order further provides:
 
  • Terms of leave. An employer must treat an employee who qualifies as if they were taking medical leave under Michigan’s Paid Medical Leave Act (PMLA): 
     
    • If an employee doesn’t have paid leave, the leave may be unpaid.
    • Employers are permitted to count leave taken under the Order against any accrued leave the employee may have. However, the length of the leave is not limited by the amount of time the employee has accrued under the PMLA, and must extend as long as the employee remains away from work under the Order.
     
  • No retaliation for lack of documentation. Employers are also prohibited from disciplining, discharging or retaliating against an individual who fails to comply with any documentation requirement showing that either they or someone with whom they have had close contact has one or more of the principal symptoms of COVID‑19.
  • Limits. The Order clarifies that although it prohibits discharge and discipline for employees that stay at home under one of the criteria, it does not prevent an employer from disciplining or discharging an employee: (a) who is allowed to return to work under the conditions of the Order but refuses to do so; (b) with the employee’s consent; or (c) for any other reason that is not unlawful.
  • Enforcement. The Order provides that the Department of Labor and Economic Opportunity (DLEO) will have the authority to enforce the Order in the same way as the PMLA. The Order does not give an employee any right to file a private lawsuit for alleged violations.
  • Duration. The Order is effective immediately and continues until the end of the state of emergency and disaster.

If you have any questions concerning the new Executive Order 2020-36 or any other labor and employment issue, please contact a member of Warner’s Labor and Employment Practice Group.

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