On April 3, 2020, Michigan Governor Whitmer issued Executive Order 2020-36 that bars employers from discharging, disciplining, or otherwise retaliating against employees for staying home when they are at particular risk of infecting others with the COVID-19 coronavirus.

According to the order, employers cannot discharge, discipline, or otherwise retaliate against the following workers who stay home during the COVID-19 state of emergency:

  1. Workers who test positive for COVID-19 or who display one of the principal symptoms of COVID-19, such as fever, atypical cough, or atypical shortness of breath.
    • These workers must be allowed to remain in their 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 the positive result.
  2. Workers 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
    • These workers must be allowed to remain in their home or place of residence 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.

Employers must treat these workers as if they were taking medical leave under the Michigan Paid Medical Leave Act. If the employee has no paid leave, then the leave may be unpaid. Employers are permitted, but not required, to use the employee’s accrued leave for the time that the employee is off for the above reasons.

However, an employer may still discharge or discipline an employee:

  • Who is allowed to return to work after the conditions that caused their COVID-19 leave under the order resolve, but declines to do so;
  • With the employee’s consent; or
  • For any other reason that is not unlawful.

Governor Whitmer’s order does not apply to certain classes of employees, such as:

  • Health care workers
  • First responders
  • Workers at a health care facility
  • Workers at correctional facilities

These employees are excluded from the mandate provided that their employers’ rules governing occupational health allow them to return to work.

If you need assistance with workplace issues arising from the COVID-19 pandemic, please contact the employment law attorneys at Sommers Schwartz today. We are working remotely and are still on the case and here to help.