Michigan Governor Whitmer’s Executive Order Provides Additional Employment Protections During the Coronavirus Crisis

employment-retaliation-COVID-19On April 3, 2020, Governor Whitmer signed Executive Order 2020-36, which protects Michigan employees from retaliation. Specifically, the mandate prevents employers from taking adverse action against employees for staying home when they are at particular risk of infecting others with COVID-19. This new measure heightens “Stay Home, Stay Safe” restrictions to Michigan residents who are either sick or have been in contact with those that are sick.

Hoping to help flatten the curve, the new executive order takes effect immediately and will remain in place until the end of coronavirus emergency or until otherwise rescinded. To help employers and employees understand their rights and responsibilities, we offer a few questions and answers.

What if I have tested positive or am experiencing symptoms?

If you have tested positive or are symptomatic for COVID-19, stay home unless it is necessary for you to travel. If you must leave home, wear some form of covering over your nose and mouth, but do not use N95 masks and surgical masks – healthcare providers and first responders take priority for those pieces of personal protection equipment.

The order defines the principle symptoms of COVID-19 as “fever, atypical cough, or atypical shortness of breath.”

The executive order instructs all individuals who test positive for COVID-19 or display symptoms to remain in their homes – even if they are permitted to leave under the “Stay Home, Stay Safe” order – until 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 a COVID-19 test that yielded a positive result. Anyone who stops showing symptoms and receives a negative COVID-19 test is not subject to these restrictions.

What if I have been in contact with someone who has tested positive or is symptomatic?

Generally, if you have been in contact with a symptomatic or COVID-19-positive individual, you must self-quarantine for 14 days, unless you receive a negative COVID-19 test.

Exceptions to the self-quarantine requirement include:

  1. Health care professionals or workers at a health care facility
  2. First responders
  3. Workers at child caring institutions

What if one of my employees qualifies as a particular risk of infecting others?

As an employer, do everything you can to communicate the risk to your workforce and work with your employees so they can return to work happy and healthy.

The new executive order prohibits all employers, regardless of their size, from discharging, disciplining, or otherwise retaliating against employees for staying home from work if they or one of their close contacts tests positive for COVID-19 or has symptoms of the disease.

If an employee needs to take leave, is the leave paid or unpaid?

It depends. The order requires an employer to treat the employee as if they were taking medical leave under Michigan’s Paid Medical Leave Act (MPMLA), and this leave must be paid. If the employer is not subject to the MPMLA, or if the employee has no remaining paid leave, the leave may be unpaid. Employers are permitted, but not required, to deduct the employee’s coronavirus-related leave hours from their accrued leave. Additionally, employers will need to consider if the employee is entitled to leave under the Families First Coronavirus Response Act.

Is there a documentation requirement?

Under the MPMLA, employees must follow their employer’s usual and customary notice, procedural, and documentation requirements for requesting leave, but an employer must allow the employee at least three days to provide documentation.

Under the executive order, an employer may not discharge, discipline, or retaliate against the employee for failing to document that they or an individual with whom the employee has had close contact has one or more of the principal COVID-19 symptoms. An employer may request documentation, but cannot discipline because an employee fails to provide it.

Kreis Enderle’s Lawyers Are Here to Help Employers and Employees

Employment rules and regulations are ever-changing during the coronavirus outbreak, leaving workers and employers uncertain about how to comply.  The attorneys in our Employment Law Practice Group remain on the job. We are working remotely during the crisis and can conference with you by telephone or video to ensure proper physical distancing.

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