Executive Order 2020-36 Prohibits Adverse Action Against Employees Who Stay Home
On April 3, 2020, Governor Whitmer signed Executive Order 2020-36, (Protecting Workers Who Stay Home, Stay Safe When They Are Sick). This Order provides protections against workplace discrimination and/or retaliation against employees who stay home to protect the heath and safety of Michigan residents.
Under Executive Order 2020-36, individuals permitted to work under Executive Order 2020-21 (Stay Home, Stay Safe) must stay home when they or their close contacts are sick and they cannot be punished for doing so. Specifically, Executive Order 2020-36 provides, “[an] employer shall not discharge, discipline, or otherwise retaliate against an employee for staying home from work” pursuant to the terms of the Order.
Under the Executive Order 2020-36, the following individuals must stay home:
Individuals who test positive for Covid-19 or display one or more of the principal symptoms of Covid-19 (fever, cough, or shortness of breath) until 3 days have passed since the symptoms have resolved and 7 days since the symptoms first appeared or they were swabbed for a test that yielded a positive result; and
Individuals who have had close contact with an individual who tests positive for Covid-19 or displays principal symptoms, until the earlier of 14 days after the contact or the symptomatic individual receives negative Covid-19 test results.
This means that employees who are necessary to conduct minimum basic business operations and critical infrastructure workers who would be otherwise allowed to go to work, are now not permitted to leave their home if they test positive for Covid-19, display symptoms, or come in close contact with someone diagnosed or displaying symptoms of Covid-19.
The above described individuals may only leave their homes:
When absolutely necessary to obtain food, medicine, medical care or supplies that cannot be obtained via delivery and are needed to sustain or protect life; and
To engage in outdoor or recreational activities consistent with remaining at least 6 feet away from individuals not in their own household.
When leaving their home, the above identified individuals must wear items to cover their nose and mouth, but should reserve N95 masks and surgical masks for healthcare professionals.
Employers have the following obligations to individuals who must say home:
The employer may not discharge, discipline, or retaliate against employees subject to EO 2020-36;
The employer must treat the subject employee as if (s)he was on Medical Leave under the Paid Medical Leave Act;
The employer cannot discharge, discipline, or retaliate against an employee who fails to comply with a requirement to document that the employee or an individual with whom the employee has had close contact has one or more of the principal symptoms of Covid-19.
Employers may issue discipline or terminate an employee who is ordered to stay home by the Order if:
The employee returns to work before (s)he is allowed to do so by EO 2020-36;
The employee declines to return to work, when permitted pursuant to EO 2020-36;
The employee consents to the discharge or discipline; or
There are one or more lawful reasons to terminate or discipline the employee.
There are certain exceptions to this Order. Section 2 provides that the Order will cease to apply to anyone who after showing symptoms of Covid-19 receives a negative Covid-19 test result. Furthermore, Section 3 clarifies that this Order does not apply to the following classes of workers:
Health care professionals;
Workers at a health care facility;
First responders (police officers, fire fighters, and paramedics);
Child Protective Service employees
Workers at child care institutions; and
Workers at correctional facilities.
Of note, Section 8 clarifies that nothing within EO 2020-36 shall be taken to create a private right of action against an employer for failing to comply with the Order or against an individual for acting contrary to the directives in sections 2, 3, 5, or 6.
If you have questions regarding Executive Order 2020-36, contact employment attorney Nancy Chinonis.