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On August 27, 2020, Governor Whitmer issued Executive Order 2020-172, the seventh updated Workplace Safety Order. This guidance reaffirms that employers are prohibited from discharging, disciplining, or retaliating against employees who stay home when they or their close contacts are sick and clarifies what might trigger an employer to send an employee home from work—and for how long!

Michigan Executive Order 2020-172 is one of three recent Executive Orders impacting work arrangements during the COVID-19 State of Emergency. Michigan Executive Order 2020-160, the Amended Safe Start Reorder, identified what businesses must remain closed during the current period and issued the new requirement that “any work that is capable of being performed remotely… must be performed remotely” [emphasis added]. Michigan Executive Order 2020-161, Safeguards to Protect Michigan Workers, provides detailed, sector specific guidance regarding what safety precautions must be in place for employees. Although largely a restatement of previous Executive Orders addressing worker safety, Mich. E.O. 2020-161 did introduce some new requirements, such as requiring virtual meetings whenever possible. Executive Order 2020-172, addresses when individuals must quarantine and how their employer must accommodate them.

UPDATED QUARANTINE MANDATES

One of the largest impacts of Mich. E.O. 2020-172 relates to who must quarantine, and how long they must quarantine. This Order built upon and rescinded Executive Order 2020-166 that first introduced these concepts to employers.

Quarantine Based on Employee’s “Principal Symptom of COVID-19”

Like previous orders, Michigan Executive Order 2020-172 requires quarantine for all individuals who test positive for or display one of the “principal symptoms” of COVID-19. The definition of “principal symptoms of COVID-19″ has been a fluid one, largely due to enhanced understanding about how the virus presents itself.  As of August 7, these were “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.” Mich. E.O. 2020-166(7)(a)(rescinded).

“Principal Symptoms of COVID-19” are once again been redefined in yesterday’s Mich. E.O. 2020-172(7)(a), limiting the definition and leading to the potential that less individuals become subject to a quarantine order:

Any one of the following not explained by a known medical or physical condition: fever, sore throat, a new an uncontrolled cough that causes difficulty breathing, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.

Now, an employee displaying “principal symptoms” or testing positive for COVID-19 must quarantine until:

(a) 24 hours have passed since the resolution of their fever without the use of fever reducing medications;

(b) 10 days have passed since their symptoms first appeared or since they were

swabbed for the test that yielded the positive result; and

(c) other symptoms have improved.

Mich. E.O. 2020-172(2). It is important to remember that all three of these factors must be met before the employee returns to work.

Quarantine Based on Close Contact

The other category of individuals who must quarantine under Mich. E.O. 2020-172 are those individuals who had “close contact” with an individual displaying the principal symptoms of or has tested positive for COVID-19. Consistent with previous executive orders, Mich. E.O. 2020-172 defines “close contact” as “being within six feet of an individual for fifteen minutes.” Mich. E.O. 2020-172(7)(c).

Under Mich. E.O. 2020-172, employees who did have “close contact” must quarantine for:

1. 14 days since the last close contact with the sick or symptomatic individual;

or

2. The individual displaying COVID-19 symptoms receives a negative COVID-19 test.

Mich. E.O. 2020-172(3).  Since the 14-day quarantine period is measured against the date of the “last close contact” with a sick or symptomatic individual the date of the last close contact may change. This is especially a concern where the individual displaying symptoms or having tested positive for COVID-19 is a member of the employee’s household.

NOTE, however, the mandatory quarantining for “close contact” does not apply to the following, provided that their employers’ rules governing occupational health allow them to go to work:

• Health care professionals.
• Workers at a health care facility.
• First responders (e.g., police officers, fire fighters, paramedics, emergency medical technicians).
• Child protective service employees.
• Workers at child caring institutions, as defined in section 1 of Public Act 116 of 1973.
• Workers at adult foster care facilities, as defined in the Adult Foster Care Facility Licensing Act.
• Workers at correctional facilities.

IMPACT TO PREPAREDNESS AND RESPONSE PLANS AND DAILY SCREENING PROTOCOLS

The changes in Mich. E.O. 2020-172, may impact COVID-19 Preparedness and Response Plans, as well as how employers conduct their daily employee screening protocol.

Michigan Executive Order 2020-161 continues the requirement that employers have COVID-19 Preparedness and Response Plans. Mich. E.O. 2020-161(1)(a).  Many Preparedness and Response Plans drafted in early June under Mich. E.O. 2020-114 will not reflect current Executive Orders—and may still be short of compliance even if updated earlier this month to match Executive Order 2020-166! Employers are encouraged to revisit their COVID-19 Preparedness and Response Plans to ensure compliance with the newest Michigan Executive Orders impacting workplaces: namely, Michigan Executive Orders 2020-161 & 2020-172. (Another area of review should be the newer requirements for all employers and sector-specific requirements of Michigan Executive Order 2020-161.)

Additionally, we encourage review of the employee screening protocols.  All employers must:

Conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19.

Mich. E.O. 2020-161(1)(f).  Many organizations include questions about the “principal symptoms of COVID-19” on their daily screening protocol (or in the COVID-19 Preparedness and Response Plan or other protocols relating to COVID-19). No Executive Order presently in effect defines what symptoms of COVID-19 must be covered in the “questionnaire covering symptoms”. We consider the purpose of the daily screening protocol to be assessing which employees must quarantine because they have symptoms of COVID-19. After yesterday’s changes to the definition of “principal symptoms of COVID-19” under Mich. E.O. 2020-172, however, employers should update the daily screening protocol to reflect the newly defined principal symptoms of COVID-19. This will ensure compliance with the mandate to quarantine employees “who display one or more” of the principal symptoms. Mich. E.O. 2020-172(2)

PROTECTIONS FOR EMPLOYEES UNDER QUARANTINE

Employers are prohibited from discharging, disciplining, or otherwise retaliating against an employee who stays home when:

• They have tested possible for COVID-19 or who display one or more of the principal symptoms of COVID-19.
• They have 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.

Under the Order, employers must treat an employee subject to quarantine under Mich. E.O. 2020-172, as if he or she were taking medical leave under the Paid Medical Leave Act “PMLA.” Mich. E.O. 2020-172(1)(b). If the employee has exhausted all forms of leave, paid or otherwise, the employer must grant the employee leave as long as the employee is subject to quarantine under Mich. E.O. 2020-172. Mich. E.O. 2020-172(1)(b)(2).

This Order does not prevent an employer from discharging or disciplining an employee who is allowed to return to work under this Order, but declines to do so, if the employee consents to the termination, or for any other reason that is not unlawful.

CONCLUSION

Two common issues addressed in many COVID-19 Preparedness and Response plans that would be impacted by the recent changes to Executive Orders include daily screening protocols and minimum quarantine periods (specifically ones that address what symptoms will be screened for and how long individuals must quarantine).

As always, please do not hesitate to contact us if you have additional questions about how Executive Order 2020-172 impacts your workplace. Our dedicated team is continuing to monitor the situation as it develops.

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This communication is not intended to constitute legal advice. Since the emergency regulations and guidelines are evolving rapidly and each of your circumstances are unique, we encourage you to reach out to us if you have questions about how this or other COVID-19 related government action.