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Governor Whitmer Issues Executive Order Protecting Employees Who Stay Home Due to COVID-19

April 3, 2020

Today, Governor Whitmer issued Executive Order 2020-36, which went into effect immediately upon signing and remains in place until the end of the declared states of emergency and disaster.   EO 2020-36 offers protections to workers who stay home when they or their close contacts test positive for or display principal symptoms (as outlined in the executive order) of COVID-19. The Executive Order also imposes new guidelines for employers of such workers.

“Principal symptoms of COVID-19” and “close contact” are defined in EO 2020-36.

New Requirements for Individuals

Under EO 2020-36, all individuals who test positive for or display any of the principal symptoms of COVID-19 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.

These requirements will not apply to anyone who, after showing symptoms, receives a negative COVID-19 test.

Additionally, all individuals who have had close contact with someone who tests positive for or displays any of the principal symptoms of COVID-19 should remain in their home or place of residence until:

a) either 14 days have passed since the last close contact with the sick or symptomatic individual, or
b) the symptomatic individual receives a negative COVID-19 test.

The “close-contact” guidelines do not apply to health care professionals, health care facility workers, first responders, child protective service employees, workers at child care institutions, and workers at correctional facilities.

If any of the individuals outlined above do leave their homes or places of residence, some form of covering should be worn over the nose and mouth, such as a homemade mask, scarf, bandana, or handkerchief.  It is recommended that N95 masks and surgical masks not be used so that they can be reserved for health care professionals, first responders, and other critical workers.

Implications for Employers

Under EO 2020-36, employers cannot discharge, discipline, or otherwise retaliate against an employee who falls into any of the categories outlined above if that employee stays home from work during the required time period.  However, if an employee returns to work before the completion of the required time period, he or she is not entitled to the protections against discharge, discipline or retaliation for staying home.

Instead, employers must treat an employee who stays home under this Executive Order as if he or she were taking medical leave under Michigan’s Paid Medical Leave Act. To the extent that the employee has no paid leave, the leave may be unpaid. While employers are permitted to debit any hours from an employee’s accrued leave, if the employee has not accrued enough leave to cover the entire time required by EO 2020-36, the employer must extend the employee’s leave to cover the entire time the employee remains home from work.  This extension of leave may be paid or unpaid.

Employers are also prohibited from discharging, disciplining, or retaliating against an employee for failing to comply with a requirement to document 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.  

An employer can still discharge or discipline an employee who:

  1. is allowed to return to work after the required time but declines to do so;
  2. consents to discharge or discipline; or
  3. is otherwise discharged or disciplined any other reason that is not unlawful.

The attorneys in Clark Hill’s Labor & Employment Practice Group understand that this is a trying time for business around the country and are available to assist in navigating these uncharted waters. For more information, please visit Clark Hill’s COVID-19 Resources webpage.

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