06 Apr GOVERNOR WHITMER ISSUES EXECUTIVE ORDER PROVIDING EMPLOYEES THE RIGHT TO STAY HOME FROM WORK WHEN THEY ARE AT RISK OF INFECTING OTHERS WITH CORONAVIRUS
On April 3, 2020, Governor Whitmer issued Executive Order 2020-36 (the “Order”) providing employees the right to stay home from work in connection with the coronavirus. Specifically, the Order prohibits employers from “discharging, disciplining, or retaliating against” employees who choose to stay home from work due to being at “particular risk of infecting others with COVID-19.” Employees provided this new right include those who: (1) test positive for coronavirus or display one or more of the “principal symptoms” of coronavirus; or (2) have had close contact with a person who tested positive for coronavirus or displayed one or more of the disease’s principal symptoms. Employees who fit into either of the two categories are referred to as “employees at particular risk” and may refuse to work during the timeframes specified in the Order.
Under the new Order, an employer must treat the absence of an employee at particular risk as if the employee were taking medical leave under the Paid Medical Leave Act (the “PMLA”). The PMLA requires businesses with 50 or more employees to provide eligible employees with at least 40 hours of paid medical leave in a 12-month period. The Order, however, goes beyond the PMLA’s requirements in several important respects.
First, the Order applies to all employers, regardless of how many individuals it employs. Second, the various prerequisites for accruing and using leave rights under the PMLA (such as working at least 25 hours per week or having worked for at least 90 days) are waived under the Order. Third, while the PMLA permits an employer to require appropriate documentation supporting the reason for leave, the Order prohibits an employer from taking action against an employee who fails to provide such documentation. In essence, the employer is to take at face value the claim of an employee that he or she is an employee at particular risk. Fourth, the Order provides that the length of leave for an employee at particular risk is not limited to the amount of leave an employee potentially may have under the PMLA (capped at 40 hours). Instead, the employee may choose to stay off work for as long as the time periods identified in the Order.
The time periods described in the Order differ depending on the reason an employee is at risk of spreading coronavirus. Employees who themselves test positive or display principal symptoms of coronavirus may stay home until three days have passed since their symptoms resolved and seven days have passed since their symptoms appeared (or since they were swabbed for the test that yielded the positive result). Employees having come in close contact with a person who either tested positive for coronavirus or showed the principal symptoms of the disease, may stay home until either the passage of 14 days from the date of last exposure or until the person with symptoms tests negative for coronavirus.
Importantly, while the Order references the operation of the PMLA, it does not require employers to provide paid leave. Employee are entitled to paid leave only in cases where paid leave is actually available to them under the PMLA. In addition, an employer may require an employee taking leave provided under the Order to use any paid leave available to them pursuant to its internal policies. The Order also makes clear that an employer may take action against an employee who fails to return to work once the time periods for leave have concluded.
Certain classes of workers are exempted from the Order, including health care workers, first responders, child protective service employees, workers at child caring institutions, and workers at correctional facilities.
Finally, the Order adopts the PMLA’s enforcement mechanisms for alleged violations. Claims are handled by the Department of Licensing and Regulatory Affairs. There are no private causes of action allowed in the courts. Interestingly, while the PMLA provides for agency enforcement of leave rights, fines up to $1,000, and additional fines for willful violations, nothing in the PMLA or in the Order itself provide the agency with the power to provide reinstatement or lost wages for violations of either mandate. Of course, our office strongly recommends that all clients adhere to the requirements of both the new Order and the PMLA.
The Executive Order may be found here:
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-524136–,00.html As always, clients are encouraged to contact the attorneys of the Masud Labor Law Group with any questions or concerns they may have in regard to any labor or employment matters they face.
 “Principal symptoms” are defined as “fever, atypical cough, or atypical shortness of breath.”