Michigan's Governor Issues Executive Order Creating Protected Class of COVID-19 Positive Employees

In an apparent attempt to further reduce the spread of COVID-19 in Michigan, on Friday, April 3, Michigan Governor Gretchen Whitmer issued Executive Order 2020-36, which provides protection to all employees who stay home when they are at “particular risk” of infecting others with COVID-19. While this latest Order is well-intentioned, as implemented it may create significant impediments for employers who are attempting to staff positions in critical industries, and particularly for private sector employers with fewer than 500 employees who are required to provide benefits under the recent federal paid leave laws.

Leaves for Employees Testing Positive or Displaying Symptoms

On its face, the Executive Order prohibits any employer in the state from disciplining, discharging, or retaliating against an employee who stays home from work after testing positive for COVID-19, or after displaying one or more of the principal symptoms of COVID-19 (i.e. fever, atypical cough, or shortness of breath). That protection lasts until three days have passed since that employee’s symptoms resolve or until seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result. 

Leaves for Employees Having “Close Contact” with At-Risk Individuals

The Executive Order also protects employees who stay home after having “close contact” with any person who tested positive for COVID-19, or who displayed one or more of the principal symptoms of COVID-19, until 14 days after their last close contact with the sick or symptomatic individual. The Order defines “close contact” as “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.” In other words, it is not intended to cover casual contact. Further, this portion of the Order does not apply to health care professionals, workers at health care facilities, first responders, child protective service employees, workers at child care institutions, and workers at correctional facilities (provided that their employers’ rules governing occupational health allow them to go to work).

Length of Leaves Required

Any employees who take time off because of their exposure to COVID-19 as described above must be treated under the Governor’s Order as if they were taking medical leave under Michigan’s Paid Medical Leave Act, even if the employer or employee is not otherwise covered by that Act. If an employee has no paid leave available, then the leave may be unpaid. But the length of the leave cannot be limited by the amount of leave that an employee has accrued. Instead, an employer who has an eligible employee per the Executive Order must extend the protected leave for as long as the employee remains away from work.

Other Protections

Finally, the Governor’s Order expressly prohibits an employer from discharging, disciplining, or retaliating against an employee who fails to comply with a requirement to document that he or she (or the individual with whom that employee had close contact) has one or more of the principal symptoms of COVID-19.

Limits of Employer’s Options to Curtail Potential Abuse of Leave Rights

The provision that is most problematic, however, is the Order’s blanket waiver of an employee’s obligation to prove that they are actually experiencing symptoms related to, or that they ever were in the presence of someone who was suffering from, COVID-19. Any employee, even those in critical industries, can simply declare that they have been exposed to COVID-19 and avoid returning to work indefinitely—the 14-day clock “restarts” at every alleged exposure and has no upper limit on the number of days that can be missed. And, to add insult to injury, an unscrupulous employee of a smaller employer could simply declare they were suffering from symptoms and take two weeks off with pay under the new Federal Paid Sick Leave law that is part of the Families First Coronavirus Relief Act. Michigan employers would have no way to require those employees to provide documentation supporting the need for leave given the Governor’s Order.

Remedies

While the Order provides significant protections in theory to employees, the impact of the Order is blunted by the enforcement mechanisms that are available to enforce its terms. The Order expressly does NOT provide employees a private cause of action against employers who violate its terms. Rather, enforcement actions are only permitted under the Michigan Paid Medical Leave Act’s enforcement mechanism, found at MCL 408.967. Specifically, within six months of an alleged violation, an aggrieved employee may file a complaint with the Michigan Department of Labor and Economic Opportunity (LEO). LEO must investigate and attempt to mediate the claim; failing mediation, LEO may issue a notice of violation imposing fines and relief to the aggrieved employee.

If you have questions regarding Order 2020-36 or other labor and employment issues, please contact a member of Dykema’s Labor and Employment practice group for guidance.

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