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Michigan Issues Executive Order Implementing COVID-19 Job Leave Protections

On April 3, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-36, which, effectively immediately, prohibits Michigan employers from discharging, disciplining or otherwise retaliating against an employee who misses work for certain specified periods of time because he or she: (i) has tested positive for COVID-19; and/or (ii) is in “close contact” with either an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19 (“Covered Employees”).  “Close contact” is defined to mean “being within approximately six feet of an individual for a prolonged period of time,” and “principal symptoms” of COVID-19 include fever, atypical cough or atypical shortness of breath.

Employers must treat Covered Employees as if they were taking medical leave under Michigan’s Paid Medical Leave Act, 2018 PA 338, as amended, MCL 408.961, et seq.  Employers may debit any hours that any Covered Employee stays home from work from the employee’s accrued leave.  However, if the employee has no accrued paid leave, the leave may be unpaid.

Covered Employees

A Michigan employee who tests positive for COVID-19 or who displays one or more of the principal symptoms of COVID-19 may take a leave of absence from work until:  (i) three days have passed since his or her symptoms have resolved; and (ii) seven days have passed since his or her symptoms first appeared or since he or she were swabbed for the test that yielded the positive result.  These protections cease to apply to anyone who, after showing symptoms, receives a negative COVID-19 test.

In addition, a Michigan employee who has 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 may take a leave of absence from work until either 14 days have passed since the last close contact with the sick or symptomatic individual or the sick or symptomatic individual receives a negative COVID-19 test.  However, these protections do not apply to: (i) healthcare professionals; (ii) workers at a healthcare facility; (iii) first responders (e.g., police officers, fire fighters and paramedics); (iv) child protective service employees; (v) workers at child care institutions; and (vi) workers at correctional facilities.

Discipline/No Private Right of Action

The Executive Order does not prohibit an employer from discharging or disciplining a Covered Employee: (i) who is allowed to return to work but declines to do so; (ii) with the employee’s consent; or (iii) for any reason that is not unlawful.  Moreover, the Executive Order does not create a private right of action for a Covered Employee.  Rather, the Michigan Department of Labor and Economic Opportunity is responsible for enforcing the Executive Order.

Implications

Employers with Michigan operations would be well-advised to familiarize themselves with the Executive Order and other COVID-19 related leave requirements to confirm that their leave policies are in compliance.

© 2020 Proskauer Rose LLP.

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About this Author

Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm
Partner

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

312-962-3545
Edward C. Young, Proskauer Rose, Harassment Lawyer, Labor Rights Attorney
Associate

Edward C. Young is an associate in the Labor & Employment Law Department. He represents companies nationwide in a broad range of employment issues, including discrimination, retaliation and harassment claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Family Medical Leave Act, as well as other federal and state employment statutes and various common law torts. In addition, Eddie represents employers in trade secret matters and challenges to the independent contractor status of workers.

Prior to attending law school, Eddie earned his master’s degree in Human Resources and Industrial Relations from Loyola University while working for more than three years in the corporate human resources department of a national professional services firm. Eddie also served as a Coles Fellow with the Illinois Human Rights Commission.

Eddie is a co-author of “Discrimination Law Basics,” which was presented at the Practicing Law Institute’s Understanding Employment Law Conference in 2014. 

312-962-3595