On August 7, Governor Gretchen Whitmer extended the State of Emergency through September 4, 2020. On the same day, Governor Whitmer issued Executive Order 2020-166, revising the earlier Executive Order 2020-36 that requires individuals to stay home if they are at particular risk of infecting others with COVID-19, meaning they: (1) are positive for COVID-19; (2) have principal symptoms of COVID-19; or (3) have been in close contact with someone who is positive or has principal symptoms of COVID-19. Executive Order 2020-166 continues the prohibition that employers may not discharge, discipline or otherwise retaliate against an employee for staying home under such circumstances, but makes some important changes detailed below.
Under Executive Order 2020-166, individuals who test positive for COVID-19 or who display “principal symptoms” must stay home until all of the following conditions are met:
- 24 hours have passed since the resolution of fever without the use of fever-reducing medications.
- 10 days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.
- Other symptoms have improved.
Individuals who have been in “close contact” with someone who is positive for COVID-19 or who has “principal symptoms” of the virus must stay home until either of the following conditions are met:
- 14 days have passed since the last close contact with the sick or symptomatic individual.
- The individual displaying symptoms receives a negative COVID-19 test.
The earlier list of “principal symptoms” (i.e., fever, an atypical cough or atypical shortness of breath) was deleted and replaced with the following symptoms:
- Sore throat
- A new uncontrolled cough that causes difficulty breathing
- Abdominal pain
- New onset of a severe headache
- New loss of taste or smell
Close contact is defined as being within six feet of an individual for 15 minutes. If the quarantine time frames and symptoms sound familiar, that is because they now align much more closely with those established or recommended by the Center for Disease Control and Prevention.
As was the case with Executive Order 2020-36, employers must treat employees off work as if they were taking leave covered under the Paid Medical Leave Act (PMLA). If employees have no paid leave, the leave may be unpaid. Employers are also permitted to deduct any hours that an employee stays home from work from the employee’s accrued leave. Importantly, Executive Order 2020-166 also qualifies as a state quarantine or self-isolation order under the Families First Coronavirus Response Act (FFCRA), thereby entitling the employee up to two weeks of paid leave under the Emergency Paid Sick Leave Act. Employees away from work under Executive Order 2020-166 are not limited to the amount of PMLA time or accrued leave, but rather they must remain off work for the required amount of time set forth above. If the employee voluntarily returns to work, the employee loses protection from discipline, discharge or retaliation. Various public safety and health care workers are also not covered by the order.
Lastly, Executive Order 2020-166 removes the prohibition against taking adverse action if employees fail to provide documentation of symptoms (their own or another person’s), meaning that employers can now require documentation if an employee is off for that reason and impose discipline if they fail to provide it. Keep in mind, however, that the U.S. Department of Labor states that employers may not require documentation from a health provider for an employee who is seeking treatment for COVID-19 symptoms as a condition to receiving pay under the FFCRA.
While the general principles behind Executive Order 2020-166 are consistent with Governor Whitmer’s earlier Executive Order 2020-36, the new Executive Order is much more nuanced and complex. If you have any questions regarding it or other employment issues surrounding COVID-19, please contact any member of Warner’s Labor and Employment Practice Group.