Governor Whitmer Issues New Executive Order Requiring Workers to Stay Home If They Have COVID-19, Have COVID-19 Symptoms, or Have Been in Close Contact with Such a Person

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

Earlier today, April 3, 2020, the Governor signed Executive Order 2020-36.  That Order makes it public policy for all individuals at particular risk of infecting others with COVID-19 to stay home with very limited exceptions.

Those “at particular risk” are generally individuals who test positive for COVID-19, who display one or more of the principal symptoms of COVID-19, or who are in close contact with such persons.  These individuals are instructed to stay home even if they are otherwise permitted to leave under the prior Stay Home, Stay Safe shutdown order.

Today’s Executive Order also provides employment protections for these individuals, with exceptions for employees working in certain classifications or at certain facilities such as in healthcare, as first responders, in certain childcare facilities, as child protective services workers, and in corrections.  The Order generally prohibits employers from discharging, disciplining, or otherwise retaliating against an employee for staying home if they are at particular risk of infecting others with COVID-19.  Notably, this includes a restriction on adverse actions if an employee fails to provide supporting documentation requested by the employer.  The Order also requires employers to deem such individuals on leave, which may be paid under Michigan’s Paid Medical Leave Act.

We are in the process of fully digesting the scope, meaning, and impact that this Order will have on our clients.  Miller Johnson’s Employment Section will host a webinar early next week to provide more details.  In the meantime, please below for a summary.

SUMMARY

Who is Protected and Should Stay Home?

There are two groups of individuals deemed “particularly at-risk” of spreading COVID-19 who should stay home and who will receive the protections under EO 2020-36.

The first group includes individuals who test positive for COVID-19 or who display one or more of the principal symptoms of COVID-19. Principal symptoms are defined as a fever, atypical cough, or atypical shortness of breath.

These individuals should remain in their home or place of residence until: (a) three days have passed since their symptoms have resolved, and (b) seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result, or after receiving a negative COVID-19 test.

The second group includes those who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19.  Close contact means “being within approximately six feet of an individual for a prolonged period of time.” Close contact can occur, for example, while caring for, living with, visiting, or sharing a health care waiting room with an individual.

Individuals in this group should remain in their home or place of residence until either 14 days have passed since the last close contact with the sick or symptomatic individual, or the symptomatic individual receives a negative COVID-19 test.

What Protections Are Granted to At Risk Individuals?

Employers may not discharge, discipline, or otherwise retaliate against a protected employee in either group of individuals if that employee stays home for the periods set forth in the Executive Order as explained above.  The Order also prohibits employers from disciplining or retaliating against “at risk” employees for failing to provide documentation that the employee or the individual with whom the employee has had close contact has one or more of the principal symptoms of COVID-19.  When an employee asks for a leave because he or she has a serious health condition or must care for someone else with a serious health condition, employers ordinarily require the employee to support his or her request with documentation from a health care provider.  Under this Order, employers may request supporting documentation but may not take any adverse action against an employee who fails to provide it.

Employers must treat employees within either protected group as if they were taking a medical leave under Michigan’s Paid Medical Leave Act, MCL 408.961 et seq.  If the employee has exhausted their paid leave under that Act or it does not apply, the leave can be unpaid.  Employers are also permitted, but not required, to reduce any hours that an employee stays home from work from the employee’s accrued leave.

The length of such leave is not limited by the amount of leave that an employee may have under the Paid Medical Leave Act.  Rather, it may continue as unpaid leave as long as the employee remains away from work within the time periods in the Executive Order.

What Employers and Employees are Covered? 

The EO covers employers of all sizes.  There is no exception for small employers.

The EO does carve out certain classes of employees in certain circumstances.  Workers who may be excluded include:

• Health care professionals;
• Workers at a health care facility, as defined by the EO;
• First responders (e.g., police officers, fire fighters, paramedics);
• Child protective service employees;
• Workers at child caring institutions, as defined in MCL 722.111; and
• Workers at correctional facilities.

Please contact the authors or your Miller Johnson attorney if you have any questions.