COVID-19 Update: Michigan Employers Must Provide Protected Leave to Certain Workers

Today, Michigan Governor Gretchen Whitmer issued another Executive Order regarding COVID-19, which takes effect immediately.  Under Executive Order 20-36, employers are prohibited from discharging, disciplining, or otherwise retaliating against certain employees who stay home from work for COVID-19 reasons. The Order requires employers to treat such employees as if they were taking a medical leave under Michigan’s Paid Medical Leave Act. This Order is not without limitations, however, and Michigan employers should prepare for how to respond to requests for leave under the Order.

The Order creates protected categories of employees with varying levels of symptoms and exposure to COVID-19.  The Order defines the principal symptoms of COVID-19 as fever, atypical cough, or atypical shortness of breath, while close contact is defined as being within six feet of an individual for a prolonged period of time.  For each category of protected individuals, the possible return to work date is based on elapsed time (or a negative test, in one category):

For each category of protected workers, a Michigan employer must provide medical leave, as if Michigan’s Paid Medical Leave Act (PMLA) applied. The Order applies even to employers who are exempted from the PMLA’s requirements, though such employers are only required to provide unpaid leave. If an employee does not have paid leave under the PMLA or has exhausted such leave, the leave may be unpaid.  If an employee does have paid leave under the PMLA, an employer can require the employee to use the paid leave.

Employers are prohibited from discharging, disciplining, or retaliating against an employee in a protected category for staying at home.  Employers are also prohibited from taking adverse actions against an employee for failing to comply with a documentation requirement of close contact with an individual with one or more of the principal symptoms of COVID-19.

While expansive, there are some critical limitations to the Order. First, if an employee fails to return to work after being able to return, he or she may be disciplined or discharged. Second, certain workers are exempted from these protections, including health care professionals, workers at certain health care facilities, first responders, child protective service employees, workers at child caring institutions, and workers at correctional facilities. Finally, the Order does not create a private right of action against an employer for failing to comply with the requirements and prohibitions.

The Order takes immediate effect and will continue until the declared emergency and disaster states have ended. If you have questions about this Order or any other COVID-19 workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.