Governor Whitmer’s Executive Order Extending Employment Protections to Workers Who Stay Home During the COVID-19 Emergency

On April 3, 2020, Michigan Governor Gretchen Whitmer issued Executive Order No. 2020-36, which prohibits employers from retaliating against employees who are permitted to go into work under the “Stay Home, Stay Safe Order” Executive Order No. 2020-21.

Under Executive Order No. 2020-36, an employer, regardless of size, cannot discharge, discipline, or otherwise retaliate against an employee for staying home when he or she is at risk of infecting others with COVID-19. The Executive Order states that individuals should remain in their home and away from work under the following circumstances:

1. An individual who tests positive for COVID-19 or displays one or more symptoms of the infection (i.e., fever, atypical cough, or atypical shortness of breath) even if he or she is permitted to leave in accordance with the “Stay Home, Stay Safe” Executive Order or any subsequent executive orders, until:

• • Three (3) days have passed since their symptoms have resolved; and
  • Seven (7) days have passed since their symptoms first appeared or

The above directive to stay home ceases to anyone who, after showing symptoms, receives a negative COVID-19 test

2. Any and all individuals who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of its symptoms (i.e., fever, atypical cough, or atypical shortness of breath) 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. This directive does apply to the following workers, provided that their employers’ rules and policies governing occupational health allow them to go to work: health care professionals, first responders (e.g., law enforcement officers, fire fighters, paramedics), child protective service employees, workers at child caring institutions, and workers at correctional facilities.

An employer is to treat an employee who must remain in his or her home for the above circumstances as if he or she was taking a medical leave under Michigan’s Paid Medical Leave Act, MCL 408.961 et seq. If an employee has no paid leave, the leave may be unpaid. An employer can withdraw any hours an employee takes for staying home from the his/her accrued leave. The length of such leave is not limited to the amount of leave that an employee has accrued under the Paid Medical Leave Act and it must be extended – whether paid or unpaid – as long as the employee is to remain home for the reasons detailed above.

Additionally, an employee is prohibited from discharging, disciplining or retaliating again an employee who remains home for the above-mentioned reasons, should he or she fail to comply with a requirement to document the reason for the need of leave.

An employer, however, is not prevented from discharging or disciplining an employee who:

1. Is allowed to return to work in accordance with the directives above, but declines to do so;
2. With the employee’s consent; or
3. For any other reason that is not unlawful.

Further, an individual who returns to work prior to the periods set forth above is not entitled to the protections against retaliation.

The Executive Order does not create a right for an employee to bring a private cause of action against an employer for failing to comply with this Executive Order. Nor does it create a private cause of action against an employee for acting contrary to this Executive Order. Nevertheless, the Director of Michigan’s Department of Labor Economic Opportunity is authorized to enforce the Order in a manner consistent with his enforcement of section 7 of the Paid Medical Leave Act, MCL 408.967 (i.e., the Department’s investigation of complaint and attempt to resolve it through mediation, imposition of an administrative fine of not more than $1,000.00).

The Executive Order went into effect on April 3, 2020 and will continue until the end of the declaration of the state of emergency.

Should you have any questions related to the directives of this Executive Order, please do not hesitate to contact your Keller Thoma attorney.