Member Article

On August 27, Michigan Governor Gretchen Whitmer released Executive Order 2020-172, entitled “Protecting workers who stay home, stay safe when they or their close contacts are sick,” which replaces Executive Order 2020-166. The new executive order is nearly identical to the one it replaces, with two important differences. First, the new order recognizes that an employee’s symptoms could be explained by other medical conditions, which should not prevent an employee from reporting to work. Second, the new order recognizes that an employee should not be required to stay home simply because he or she displays one of the more innocuous symptoms of COVID-19 on its own.

Like its predecessor orders, Executive Order 2020-172 prohibits employers from disciplining, discharging, or retaliating against an employee who stays home from work after testing positive for COVID-19, displaying the principal symptoms of COVID-19, or having “close contact” with any person who tested positive for COVID-19 or displayed its principal symptoms. The EO re-defines “principal symptoms of COVID-19” to mean: “(i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain.”

A press release from the Governor’s office indicated that this order is intended to clarify that “workers who have a known medical or physical condition causing their symptoms need not stay home.” Based on this updated order, an employee whose symptoms are explained by known allergies need not stay home merely because he or she has a sore throat and loss of smell. Similarly, under the new EO, an employee need not stay home simply because he or she has a headache without any other symptoms.

Under Executive Order 2020-172, employees who have COVID-19 or displayed its principal symptoms are entitled to job-protected leave until: “(a) 24 hours have passed since the resolution of fever without the use of fever reducing medications; (b) 10 days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result; and (c) other symptoms have improved.” Employees who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19 are entitled to job-protected leave until: “(a) 14 days have passed since the last close contact with the sick or symptomatic individual; or (b) the individual displaying COVID-19 symptoms receives a negative COVID-19 test.” During this time, employees may take advantage of paid leave under the Families First Coronavirus Response Act (“FFCRA”) or Michigan Paid Medical Leave Act, if available. If the employee has no paid leave available, the leave may be unpaid.

Notably, the order appears contradictory as to when an individual who displays the principal symptoms of COVID-19 may return to work in the event that he or she receives a negative COVID test. On one hand, it groups these employees with those who test positive in describing the return-to-work criteria, but on the other hand, it recognizes that an employee who has come into contact with a symptomatic individual who received a negative COVID-19 test should return to work.

The current Executive Order continues to limit an employer’s options to curtail abuse, as explained in our earlier post.

Michigan employers may want to consider revising their employee screening forms based on Executive Order 2020-172 so that fewer employees will fail screening and be required to stay home. If you have questions regarding Order 2020-172 or would like to discuss a revised employee screening form, please contact Elisa Lintemuth or your Dykema relationship attorney.

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