On April 3, 2020 Governor Whitmer signed an executive order prohibiting employers from discharging, disciplining or otherwise retaliating against an employee for staying home from work if they or one of their close contacts are exhibiting symptoms of COVID-19 or tests positive for the disease. The executive order is effective immediately and will remain in place until the end of the governor’s declared state of emergency or the order is otherwise rescinded.

The governor’s order states that:

• Individuals who test positive for COVID-19 or who display one or more of the symptoms of the disease should remain in their homes until three days have passed since their symptoms have resolved and seven days have passed since their symptoms first appeared or since they were swabbed for a test that yielded the positive result or the symptomatic individual receives a negative COVID-19 test.

• All people who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays symptoms of the virus should remain at their homes until either 14 days have passed since the last close contact or the symptomatic individual receives a negative COVID-19 test. This section does not apply to health care professionals, workers at a health care facility, first responders, child care workers and correctional facilities.

• When symptomatic people and their close contacts must leave the home, they should wear some form of covering over their nose and mouth, such as a homemade mask, bandana or scarf. For now, supplies of N95 masks and surgical masks should generally be reserved for health care professionals and first responders.

An employer may not discharge or discipline an employee who is staying home from work in compliance with the policies laid out above. The order specifies that:

• Employers must allow employees to stay home from work for the periods described above. Employers may not retaliate against employees for taking such leave.

• Employers must treat such an employee as if he/she were taking medical leave under Michigan’s Paid Medical Leave Act, MCL 408.961.

• If the employee has no paid leave, the leave may be unpaid. Employers are permitted, but not required, to debit the hours from the employee’s accrued leave.

• Employers may not discharge, discipline or retaliate against such employees for failing to comply with a requirement to document that the employee or his/her close contact has one or more of the primary COVID-19 symptoms.

• For businesses under 500 employees covered by the Families First Coronavirus Response Act (FFCRA), Emergency Paid Sick Leave (EPSL) may also be available to cover the employee’s absence if the requirements of FFCRA have been met. Please see Varnum’s client advisory on FFCRA for more information.