Litchfield Cavo Partner Summarizes Michigan COVID-19 Executive Order

Partner Kathleen J. Collins has issued a Litchfield Alert, “Michigan Extends Retaliation Protections To Include Covid-19 Employees,” that summarizes the recent executive order signed by the State of Michigan’s governor, Gretchen Whitmer. Executive Order 2020-04 prohibits employers from retaliating against employees who suffer from or have tested positive for COVID-19.

Background
The executive order states that employers must treat employee as if the taking leave under Michigan’s Paid Medical Leave Act. Though, if the employee does not have paid leave available the employee may take  unpaid leave, and the duration of leave is not limited by the amount of the employee’s accrued leave under the Paid Medical Leave Act, and must extend so long as they remain out from work for reasons related to COVID-19. If unpaid leave, employers are permitted to debit the employees hours against their accrued leave.

This order explicitly states employers are prohibited from discharging, disciplining or otherwise retaliating against an employee, employers are permitted to discharge or discipline an employee for failing to comply with coronavirus documentation protocols. The order is effective immediately and continues through the end of Michigan’s state of emergency.

Details
On April 3, 2020, Governor Gretchen Whitmer, issued an Executive Order 2020-04 for the State of Michigan, barring employers from disciplining, discharging or otherwise retaliating against an employee for staying home from work if the employee tests positive for COVID-19. Retaliation against an employee is also prohibited if they display principal symptoms of COVID-19. The order is effective immediately and continues through the end of Michigan’s state of emergency.

Employers are specifically prohibited from discharging, disciplining or otherwise retaliating against an employee for failing to comply with a requirement to document that the employee or the individual with whom the employee has had close contact has one or more of the principal symptoms of COVID-19. However, employers are permitted to discharge or discipline an employee:

• who is allowed to return to work under the provisions described above but refuses;
• with the employee’s consent;
• for any other lawful reason.

Employers are prohibited from retaliation an employee action against an employee for staying at home or place of residence for reasons related to the coronavirus, as described above. Further, employers must treat such an employee as if the employee were taking leave under Michigan’s Paid Medical Leave Act.

If an employee has no available paid leave, the employee’s leave may be unpaid. Though, the length of an employee’s leave is not limited by the amount of their accrued leave under the Paid Medical Leave Act, and the leave must extend. This applies whether the leave is paid or unpaid, so long as the employee remains out from work for the reasons previously discussed. Employers are permitted to debit any hours taken by the employee against the employee’s accrued leave.

Summary
While the order specifically outlines it does not create a private right of action against employers, additional language within the order creates the possibility of a wrongful termination claim. To read “Michigan Extends Retaliation Protections To Include Covid-19 Employees,” please click here.

To learn more about COVID-19 policies in your state, please contact Litchfield Cavo’s COVID-19 Resource Team lead, Kathleen J. Collins. Kathleen has more than 25 years’ experience in complex commercial litigation involving employment, commercial and residential construction, mass toxic tort and environmental matters. She has engaged in a multi-state civil litigation practice with an emphasis on defending all types of claims from initial filing to trial and appeal. Kathleen has experience with international treaties in relation to her defense of multinational corporations. Her practice also includes consumer fraud, premises liability, and commercial and personal automobile claims.

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