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07 Sep

August 2020 Michigan HR Legal Updates

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Michigan Enforces Stricter COVID-19 Definitions Reducing Leave Protections

What happened?
Governor Whitmer just issued an executive order that limits the availability of job-protected leave moving forward only to those employees who pose a “particular risk of infecting others with COVID-19.”

What are the details?
Michigan employers of all sizes cannot discharge, discipline, or retaliate against their employees for staying home from work while they pose a “particular risk of infecting others.” During the time the covered employee is home, the employer must treat them as though they are on leave under the Michigan Paid Medical Leave Act. If an employee runs out of paid leave (or has none), the employer must provide them with unpaid leave during their absence for as long as they pose a “particular risk of infecting others with COVID-19.” Note that Emergency Paid Sick Leave under the FFCRA applies separately from EO 2020-172 and leave offered under Michigan’s PMLA.

Whether someone is considered to pose a particular risk of infecting others with COVID-19 under EO 2020-172 depends on the order’s vital definition of “the principal symptoms of COVID-19.” The order defines that phrase as occurring in only two scenarios: (1) an employee has either a fever, an uncontrolled cough, or shortness of breath that cannot be explained by a known medical or physical condition; or (2) at least two of the following: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, or abdominal pain, that cannot be explained by a known medical or physical condition.

With that definition in mind, the order distinguishes between two sets of broad circumstances for when an employee poses a “particular risk of infecting others with COVID-19.” First, employees are protected from adverse employment action because they had to stay home after testing positive for COVID-19 or display “the principal symptoms of COVID-19,” but only until three milestones are reached:

  • 24 hours have passed since the resolution of fever without the use of fever-reducing medications;
  • 10 days have passed since the symptoms first appeared or since the employee was swabbed for the test that yielded the positive result; and
  • other symptoms have improved.

Second, employees are protected from adverse employment action because they had to stay home after coming into close contact with someone who either tested positive for COVID-19 or displays “the principal symptoms of COVID-19,” but only until either 14 days have passed since the last close contact (within six feet for 15 or more minutes) or the symptomatic individual receives a negative COVID-19 test. This “exposure risk” set of circumstances does not apply to healthcare professionals, first responders, workers at adult foster care facilities, child protective services employees, or those who work at healthcare facilities, daycares, and correctional facilities.

Note: Employees cannot be ordered back to work upon receiving a negative COVID-19 test result. EO 2020-172 can be read here.

What do employers need to do?
Michigan employers should review their leave policies and update them to reflect the new standards that allow employees to have protected leaves.

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Michigan Childcare Centers and Camp Staff Must Wear Face Coverings

What happened?
On August 6, 2020, the governor signed EO 2020-164 requiring face coverings in childcare centers and camps in certain circumstances.

What are the details?
According to the new order, staff and children must wear a face covering in the following circumstances:

  • all staff and children ages two and older when on a school bus or other transportation;
  • all staff and children ages four and older in all indoor common spaces; and
  • all staff and children ages 12 and older in classrooms, homes, cabins, or similar indoor, small-group settings.

Children under age two are encouraged to wear face coverings when indoors in common spaces. Children are not required to wear a face covering if they cannot medically tolerate it, during mealtime, while swimming, performing high-intensity activities, outdoors while physical distancing, or if they are under age two. This new face covering requirement is not required, though highly recommended, for childcare centers in Phase 5 of the Michigan Safe Start Plan.

EO 2020-164 can be found here.

What do employers need to do?
Employers running childcare centers and camps should immediately begin a process to acquire masks for their employees and begin notifying their customers and clients of the required changes.

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New Executive Order Modifies Worker “Stay-at-Home” Requirements

What happened?
On August 27, 2020, Governor Whitmer issued EO 2020-172, which rescinded EO 2020-166 and provides further guidance and protections to workers who stay home when they or their close contacts are sick.

What are the details?
Like the previous executive order, EO 2020-172 continues to require workers to stay home and prohibits employers from firing or disciplining a worker for staying home, if the worker tests positive, displays principal symptoms of COVID-19, or had come into close contact with someone who was positive or displayed any of the principal symptoms of COVID-19. The variance between both executive orders is the definition of “principal symptoms”:

  • EO 2020-166 defined principal symptoms as displaying one or more of the following: “fever, sore throat, a new uncontrolled cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”
  • EO 2020-172 now defines principal symptoms as any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath, or at least two of the following symptoms not explained by a known medical or physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, or abdominal pain.

EO 2020-172 also clarifies that a worker cannot stay home without being subject to repercussions if any of the symptoms could be explained by any known medical or physical condition other than COVID-19. EO 2020-172 is effective immediately.

EO 2020-172 can be read here.

What do employers need to do?
Michigan employers should review their policies regarding employee’s staying home. In order to reflect the changes made by this executive order.

 

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