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FMLA Leave Under Michigan COVID-19 Executive Order

Question Presented

Has a Michigan Executive Order has been signed to protect workers who are required to return to work, but are afraid to do so?

Short Answer

No. An employee who refuses to work simply because they are afraid of contracting the coronavirus (hereafter, “COVID-19”) is not protected under any Michigan Executive Order.

Analysis

On May 1, 2020, Governor Gretchen Whitmer signed an executive order allowing certain employees to return to work. Mich. Exec. Order 2020-70 (2020). The executive order contains no provisions for employees that are required to return to work but are afraid to do so. An executive order signed by Governor Gretchen Whitmer on April 3, 2020, provides for the protection of workers who choose to stay home. The order provides that an employer may not “discharge, discipline, or otherwise retaliate against an employee for staying at home” when they test positive for COVID-19, display a principal symptom of COVID-19, or have close contact with an individual who has tested positive or is exhibiting symptoms of COVID-19. Mich. Exec. Order 2020-36 § 2-3 (2020). Close contact is defined as being within six feet of an individual for a prolonged period of time. Id. at § 7(c).

These provisions have specific time restraints attached to them. If an employee has tested positive or experienced symptoms, they must remain home until three days have passed since their symptoms have resolved and at least seven days have passed since the onset of the symptoms or the employee receives a negative COVID-19 test. Id. at § 2. If an employee has come into close contact with a person who has experienced symptoms or tested positive, the employee should remain in their place of residence for 14 days or until they receive a negative COVID-19 test. Id. at § 3. During these time periods, the employee cannot be disciplined and may be eligible for paid leave

If an employee meets the above qualifications, an employer must pay the employee as if they were taking leave under Michigan’s Paid Medical Leave Act. Id. at §1(b). Michigan’s Paid Medical Leave Act provides that an eligible employee must have at least 40 hours of paid medical leave each year. MCL § 408.963(2). This order, once again, does not contain provisions prohibiting discipline, or allowing paid leave of those employees who are required to return to work but refuse to do so without proper cause.

The Families First Coronavirus Response Act (hereafter, “FFCRA”) goes even further in altering paid leave under the Family and Medical Leave Act (hereafter, “FMLA”). The FFCRA contains provisions that require an employer to provide an employee with paid leave if they have tested positive or are experiencing symptoms of COVID-19 or are caring for someone that meets those requirements. 116 Enacted H.R. 6201 § 5102(a)(2-4). The FFCRA states that an employee is eligible for up to 80 hours of paid leave, based on the number of hours the employee ordinarily works. Id. at § 5102(b).

Conclusion

Michigan’s latest Executive Order contains several provisions aimed at protecting employees who return to work, including the availability of personal protective equipment, altered sanitization procedures, social distancing provisions, and workplace capacity limitations. Mich. Exec. Order 2020-70 § 11 (2020). It does not, however, contain provisions that allow an employee to collect paid leave or stay home without disciplinary repercussions who cannot exhibit a valid purpose under the FFCRA or Executive Order 2020-36. Specifically, under Michigan’s Executive Order, an employee must be able to show that they have contracted or exhibited symptoms of COVID-19 or have been in close contact with someone who has.

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