Executive Order 2020-166: Protecting workers who stay home, stay safe when they or their close contacts are sick

On the August 10th edition of SBAM’s Small Business Briefing, Brian Calley and Rob Fowler discussed this order with special guest David Rhoa. During the briefing, Brian shared details on a recent conversation with the governor’s office, regarding the potential to make changes to this order, which SBAM feels is unworkable and unattainable in its current state. For now, the advice of SBAM is to carry on with your current COVID response planning, and wait for further guidance. Watch the full Small Business Briefing here.

On Friday, August 7th Governor Whitmer rescinded EO 2020-36 and replaced it with 2020-166. Read the full order here.

The order reads, in part:

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. It is the public policy of this state that an employer shall not discharge, discipline, or otherwise retaliate against an employee for staying home when he or she is at particular risk of infecting others with COVID-19. To effectuate that policy:

a. Employers are prohibited from discharging, disciplining, or otherwise retaliating against an employee described in sections 2 or 3 of this order for staying home from work for the periods described in those sections.

b. Employers must treat such an employee as if he or she were taking medical leave under the Paid Medical Leave Act, 2018 PA 338, as amended, MCL 408.961 et seq.

1. To the extent that the employee has no paid leave, the leave may be unpaid. Employers are permitted, but not required, to debit any hours that an employee described in sections 2 or 3 of this order stays home from work from the employee’s accrued leave.

2. The length of such leave is not limited by the amount of leave that an employee has accrued under MCL 408.963 and must extend, whether paid or unpaid, as long as the employee remains away from work within the time periods described in sections 2 or 3 of this order.

c. Nothing in this section shall be taken to prevent an employer from discharging or disciplining an employee:

1. Who is allowed to return to work under sections 2 or 3 of this order but declines to do so;

2. With the employee’s consent (e.g., if the employee asks to be discharged); or

3. For any other reason that is not unlawful.

d. The director of the Department of Labor and Economic Opportunity shall have authority to enforce this order in the same manner and to the same extent as the director enforces the Paid Medical Leave Act under section 7 of that act, MCL 408.967. In addition, the director shall refer all credible complaints of violations to the relevant licensing authority.

2. Subject to the exceptions in section 5 of this order, it is the public policy of this state that any and all individuals who test positive for COVID-19 or who display one or more of the principal symptoms of COVID-19 should (apart from seeking medical care) remain in their home or place of residence 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.

3. Subject to the exceptions in section 5 of this order, it is the public policy of this state that any and all people 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 should remain in their home or place of residence (apart from seeking medical care) until either:

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.

4. Section 3 does not apply to the following classes of workers, provided that their employers’ rules governing occupational health allow them to go to work:

a. Health care professionals.

b. Workers at a health care facility, as defined in section 7(d) of this order.

c. First responders (e.g., police officers, fire fighters, paramedics, emergency medical technicians).

d. Child protective service employees.

e. Workers at child caring institutions, as defined in section 1 of Public Act 116 of 1973, MCL 722.111.

f. Workers at adult foster care facilities, as defined in the Adult Foster Care Facility Licensing Act, MCL 400.703(4).

g. Workers at correctional facilities.

5. An individual described in sections 2 or 3 of this order who voluntarily returns to work (i.e. without threat of discharge, discipline, or retaliation from their employer) prior to the periods specified in sections 2 or 3, respectively, shall not be entitled to the protections against discharge, discipline, or retaliation provided under section 1 of this order.

6. It is the public policy of this state that individuals with a suspected or confirmed COVID-19 infection or who have had close contact with such an individual (i.e. individuals described in sections 2 and 3 of this order) should leave the home or place of residence only:

a. To the extent absolutely necessary to obtain food, medicine, medical care, or supplies that are needed to sustain or protect life, where such food, medicine, medical care, or supplies cannot be obtained via delivery. All food, medicine, and supplies should be picked up at the curbside to the fullest extent possible.

b. To engage in outdoor activity, including walking, hiking, running, cycling, or any other recreational activity consistent with remaining at least six feet from people from outside their household.

7. For purposes of this order:

a. “The principal symptoms of COVID-19” are fever, sore throat, a new uncontrolled cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.

b. “Employer” means the same as it does in section 2(f) of the Paid Medical Leave Act, MCL 408.962(f), except that it shall also include employers with fewer than 50 employees.

c. “Close contact” means being within six feet of an individual for fifteen minutes.

d. “Health care facility” means the following facilities, including those which may operate under shared or joint ownership:

1. The entities listed in section 20106(1) of the Public Health Code, 1978 PA 368, as amended MCL 333.20106(1).

2. State-owned hospitals and surgical centers.

3. State-operated outpatient facilities.

4. State-operated veterans facilities.

5. Entities used as surge capacity by any of the entities listed in subdivisions (1)-(4) of this subsection.

8. Nothing in this order shall be taken to create a private right of action against an employer for failing to comply with section 1 of this order or against an individual for acting contrary to the public policies of sections 2, 3, 5, or 6 of this order.

9. Executive Order 2020-36 is rescinded.

10. This order is effective immediately.