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More Symptoms and Definitions: Michigan Employers Continue to Be Required to Provide Medical Leave to Certain Workers

August 11, 2020

On Friday, August 7, 2020, Governor Whitmer issued an executive order revising the existing protected leave requirements for employers in Michigan. Under the previous Executive Order 2020-36 (EO 2020-36), employers were prohibited from discharging, disciplining, or otherwise retaliating against certain employees who stay home from work for COVID-19 reasons and were required to provide medical leave (as we detailed here). Executive Order 2020-166 (EO 2020-166) rescinds and replaces that prior order and makes three primary changes, while retaining the prohibition on adverse employment actions.

First, the order provides new time periods for employees to stay out of work if they test positive for COVID-19, display one or more of the principal symptoms of COVID-19, or had close contact with an individual who either tested positive for COVID-19 or who displays one or more of the principal symptoms of COVID-19. The time periods are set forth in the following chart:

Protected Category Return to Work After

Individuals who test positive for COVID-19


Individuals who display one or more of the principal symptoms of COVID-19

24 hours have passed since the resolution of fever without the use of fever-reducing medications

AND

10 days have passed since symptoms first appeared or since they were swabbed for the test that yielded the positive result

AND

the other symptoms have improved.

Note: Unlike in EO 2020-36, the new order does not provide that individuals may return early if they receive a negative COVID-19 test result.
Individuals who have had close contact with a person who tested positive for COVID-19 14 days have passed since close contact with the individual.
Individuals who have had close contact with a person who displays one or more of the principal symptoms of COVID-19

14 days have passed since close contact with the individual

OR

The symptomatic individual receives a negative COVID-19 test result.

Second, the new order expands the list of the principal symptoms of COVID-19. The principal symptoms are defined as follows, with new symptoms in italics: fever; sore throat; a new uncontrolled cough that causes difficulty breathing; diarrhea; vomiting; abdominal pain; new onset of severe headache; and new loss of taste or smell.

Third, the new order more carefully defines “close contact.” EO 2020-36 defined it as being within six feet of an individual for a prolonged period of time. The new order defines it as being within six feet of an individual for 15 minutes.

As with the prior order, 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.

The critical limitations of the prior order remain in place. If an employee fails to return to work after being able to return, he or she may be disciplined or discharged. Moreover, 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, workers at correctional facilities, and—under this new order—workers at adult foster care 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. 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.