NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

On April 3, 2020, Michigan Governor Whitmer issued an Executive Order prohibiting employers from discharging, disciplining, or otherwise retaliating against an employee for staying home from work because the employee tests positive for COVID-19, displays principal symptoms of COVID-19, or has had close contact with an individual who has tested positive or has symptoms. The Order takes effect immediately and continues until the end of Michigan’s declared states of emergency and disaster.

The following are critical takeaways for employers regarding the Order:

The Order encourages individuals who test positive for COVID-19 or display principal symptoms of COVID-19 to remain at home or place of residence.

Such individuals should remain at home or place of residence 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 the test that yielded a positive COVID-19 test result. This provision no longer applies to an individual if/when the individual receives a negative COVID-19 test result.

The Order defines principal symptoms as: fever, atypical cough, or atypical shortness of breath.

The Order encourages 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 the principal symptoms of COVID-19 to remain at home or place of residence.

Such individuals should remain at home or place of residence until either 14 days have passed since the last close contact occurred or the symptomatic individual receives a negative COVID-19 test.

This provision does not apply to health care professionals, workers at a health care facility, first responders, child protective service employees, workers at childcare institutions, or workers at correctional facilities.

Employers are prohibited from discharging, disciplining, or otherwise retaliating against an employee for staying at home or place of residence for the reasons described above. Employers must treat such an employee as if the employee were taking leave under Michigan’s Paid Medical Leave Act.

If an employee has no available paid leave, the leave may be unpaid. The length of an employee’s leave is not limited by the amount of leave an employee has accrued under the Paid Medical Leave Act, and the leave must extend—whether paid or unpaid—as long as the employee remains away from work for the reasons described above.

The Order permits employers to debit any hours taken by an employee for the reasons described above from the employee’s accrued leave.

Employers are also prohibited from discharging, disciplining, or otherwise 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.

Employers are permitted to discharge or discipline an employee:

• Who is allowed to return to work under the provisions described above, but refuses;
• With the employee’s consent; or
• For any other lawful reason.

The Order specifically states it does not create a private right of action against employers.

Rather, the Order authorizes the director of the Department of Labor and Economic Opportunity to enforce the Order in the same manner and extent as the director enforces the Paid Medical Leave Act.

That said, the Order frequently repeats that it is “the public policy of this state.” So, while the Order disclaims creation of a private right of action, employers should be wary of potential private lawsuits alleging wrongful termination in violation of Michigan public policy in response to an employer’s noncompliance.

Given the interplay between this latest Executive Order, the Michigan Paid Medical Leave Act, and the emergency paid sick leave and emergency unpaid and paid family leave available under the Families First Coronavirus Response Act, it is critical that employers consult with qualified counsel before discharging or disciplining an employee for absences that may be COVID-19 related.