On April 3, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-36, which, effectively immediately, prohibits Michigan employers from discharging, disciplining or otherwise retaliating against an employee who misses work for certain specified periods of time because he or she: (i) has tested positive for COVID-19; and/or (ii) is in “close contact” with either an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19 (“Covered Employees”).  “Close contact” is defined to mean “being within approximately six feet of an individual for a prolonged period of time,” and “principal symptoms” of COVID-19 include fever, atypical cough or atypical shortness of breath.

Employers must treat Covered Employees as if they were taking medical leave under Michigan’s Paid Medical Leave Act, 2018 PA 338, as amended, MCL 408.961, et seq.  Employers may debit any hours that any Covered Employee stays home from work from the employee’s accrued leave.  However, if the employee has no accrued paid leave, the leave may be unpaid.

Covered Employees

A Michigan employee who tests positive for COVID-19 or who displays one or more of the principal symptoms of COVID-19 may take a leave of absence from work until:  (i) three days have passed since his or her symptoms have resolved; and (ii) seven days have passed since his or her symptoms first appeared or since he or she were swabbed for the test that yielded the positive result.  These protections cease to apply to anyone who, after showing symptoms, receives a negative COVID-19 test.

In addition, a Michigan employee who has had “close contact” with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19 may take a leave of absence from work until either 14 days have passed since the last close contact with the sick or symptomatic individual or the sick or symptomatic individual receives a negative COVID-19 test.  However, these protections do not apply to: (i) healthcare professionals; (ii) workers at a healthcare facility; (iii) first responders (e.g., police officers, fire fighters and paramedics); (iv) child protective service employees; (v) workers at child care institutions; and (vi) workers at correctional facilities.

Discipline/No Private Right of Action

The Executive Order does not prohibit an employer from discharging or disciplining a Covered Employee: (i) who is allowed to return to work but declines to do so; (ii) with the employee’s consent; or (iii) for any reason that is not unlawful.  Moreover, the Executive Order does not create a private right of action for a Covered Employee.  Rather, the Michigan Department of Labor and Economic Opportunity is responsible for enforcing the Executive Order.

Implications

Employers with Michigan operations would be well-advised to familiarize themselves with the Executive Order and other COVID-19 related leave requirements to confirm that their leave policies are in compliance.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm’s Whistleblowing & Retaliation Group. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination, harassment and retaliation; wage-and-hour laws; breach of employment contract…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm’s Whistleblowing & Retaliation Group. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination, harassment and retaliation; wage-and-hour laws; breach of employment contract; and restrictive covenants (e.g., non-competition agreements). Steven is also at the forefront of defending whistleblower retaliation claims, and routinely conducts investigations arising from whistleblower reports. He has successfully tried cases to verdict in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S. District Court for the Northern District of Illinois. He has also testified in defense of his investigations in federal court.

Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.