Now You Know It: Special Edition

I previously wrote about Executive Order 2020-36, which prevented employers from disciplining or discharging employees who remained home due to symptoms of COVID-19 or due to “close contact” with someone who has tested positive for, or shows symptoms of, COVID-19. Last Friday, Governor Whitmer replaced the order with EO 2020-166. The new order closely follows the former order, but it expands the employee protections in several significant ways.

Most significantly, EO 2020-166 offers a broader list of symptoms considered symptomatic of COVID-19. Specifically, it provides: “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.” Per the order, any employee displaying one or more of these symptoms should remain home until:

  • 24 hours have passed without fever and without use of fever-reducing medications;
  • 10 days have passed since the symptoms appeared or since tested for COVID-19; and
  • Symptoms have improved.

The order also expands the definition “close contact” to mean “being within six feet of an [infected] individual for fifteen minutes.” Consequently, any employee who has been in “close contact” with someone who has tested positive for, or displays symptoms of, COVID-19 must remain home until:

  • 14 days have passed since last contact; or
  • The infected/symptomatic individual receives a negative COVID-19 test.

Employees out from work due to EO 2020-166 must be given any available paid sick leave under Michigan’s Paid Medical Leave Act. They are also eligible for leave under the Families First Coronavirus Response Act. If they have exhausted all leave, employers need not pay them for the time off. But employers cannot discipline or discharge them due to the absence.

Multiple business associations have complained that the expanded provisions of the new order make it impossible to administer, noting that many of the symptoms that require extended absence are indicative of any number of lesser maladies beside COVID-19. Some lobbyists in Lansing suggest a deal with the governor’s office to roll back these new provisions may be in the works. Unless and until that happens, employers need to be mindful of the expanded order and the expanded leave opportunity it affords workers.