Order bans retaliation against Michigan employees during COVID-19 pandemic

June 2020 employment law letter

Authors:

Melissa Tetreau, Bodman PLC

Michigan employers must proceed with caution before disciplining an employee for refusing to work during the COVID-19 outbreak, according to Governor Gretchen Whitmer’s Executive Order (EO) 2020-36.

What governor’s EO covers

The governor’s order prohibits discharge, discipline, or retaliation against an employee permitted to work under EO 2020-21 (replaced by 2020-59) if the refusal to work is based on a “particular risk of infecting others with COVID-19.” Under the order, the risk exists when the employee:

Tests positive for or displays one or more principle COVID-19 symptoms; or
Has had “close contact” with someone who tests positive for or displays one or more of those symptoms.

While the EO doesn’t prevent an employer from seeking documentation to substantiate the “particular risk,” it does prohibit discharge, discipline, or retaliation against an employee for failing to provide the information. In essence, you’re left with little recourse against employees who simply claim they’re at a particular risk of infecting others.

Guidance for providing leave

Governor Whitmer’s EO directs employers to provide leave consistent with the Michigan Paid Medical Leave Act and unpaid leave if no paid time is available. You may not require an employee return to work sooner than:

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