Governor Whitmer recently enacted Executive Order No. 2020-172, which clarifies the requirements for granting COVID-19-related medical leave. This new EO rescinds Executive Order 2020-166, which required Michigan employers to grant mandatory leave where an employee was experiencing any one of several symptoms of COVID-19. Under the new EO, employees must stay home if they are experiencing fever, an uncontrolled cough or shortness of breath, or if they are experiencing any two of the following conditions: “loss of taste or smell, muscle aches (‘myalgia’), sore throat, severe headache, diarrhea, vomiting, abdominal pain.” Significantly, the new EO provides an exception for symptoms that are “explained by a known medical or physical condition.”

Like its predecessor, the new EO also requires employees who have had “close contact” (i.e., being within six feet of an individual for 15 minutes or more) with a COVID-19 positive person or a symptomatic individual to stay home until such time as (1) the individual tests negative for COVID-19; or (2) 14 days have passed since the last “close contact” with the sick or symptomatic individual.

Employers should be mindful of the obligation to treat leave arising under the new EO as medical leave under Michigan’s Paid Medical Leave Act; however, that does not mean that all such leave is necessarily “paid leave.” Indeed, the new EO states: “To the extent that the employee has no paid leave, the leave may be unpaid.” Note too that “the length of such leave is not limited by the amount of leave that an employee has accrued . . . and must extend, whether paid or unpaid, as long as the employee remains away from work” as authorized by the new EO.

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