Michigan’s New Executive Order Modifies Worker “Stay-At-Home” Requirements

On August 27, 2020, Governor Gretchen Whitmer issued Executive Order 2020-172, which rescinded Executive Order 2020-166 and provides further guidance and protections to workers who stay home when they or their close contacts are sick.

Like the previous executive order, Executive Order 2020-172 continues to require workers to stay home and prohibits employers from firing or disciplining a worker for staying home, if the worker tests positive, displays principal symptoms of COVID-19, or had come into close contact with someone who was positive or displayed any of the principal symptoms of COVID-19. The variance between both executive orders is the definition of “principal symptoms”:

  • Executive Order 2020-166 defined principal symptoms as displaying one or more of the following: “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.”
  • Executive Order 2020-172 now defines principal symptoms as any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath, or at least two of the following symptoms not explained by a known medical or physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, or abdominal pain.

Executive Order 2020-172 also clarifies that a worker cannot stay home without being subject to repercussions if any of the symptoms could be explained by any known medical or physical condition other than COVID-19.

Like the previous executive order, Executive Order 2020-172 continues many of the same protections. For one, it requires workers who have tested positive or who display “principal symptoms” of COVID-19 to remain home until:

  • 24 hours have passed since the resolution of a fever without fever-reducing medications;
  • 10 days have passed since the symptoms first appeared or since swabbed for a test that resulted in a positive outcome; and
  • Other symptoms have improved.

Second, workers who have come into close contact with an individual who displays principal symptoms of COVID-19 or who have tested positive shall remain home until either:

  • 14 days have passed since the last close contact with the sick or symptomatic individual; or
  • The individual who displayed COVID-19 symptoms receives a negative COVID-19 test result.

Third, employers must continue to treat such leave as medical leave under the Paid Medical Leave Act, MCL 408.961, or continue as unpaid leave if medical leave is unavailable or has been exhausted. Lastly, though the executive order does not create a private right of action, it provides the Department of Labor and Economic Opportunity the power to enforce its provisions similar to the Paid Medical Leave Act. This can result in employers found to be in violation to face back pay awards or fines.

Executive 2020-172 is effective immediately.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.