On Friday, August 7, 2020, Governor Gretchen Whitmer issued Executive Order 2020-166, Protecting workers who stay home, stay safe when they or their close contacts are sick – Rescission of Executive order 2020-36. This is an important Order because it could change the protocol for employers dealing with cases of positive COVID cases in workplaces in Michigan. Although this Order addresses many of the same issues as some of the Governor’s prior executive orders (prohibiting employers from discharging, disciplining or retaliating against employees who make responsible choices to stay home when they or their close contacts are sick), it provides new guidance on two specific scenarios described below. In addition, the Order reflects newer guidance from the CDC on the proper period of self-quarantine after a diagnosis of COVID-19 or onset of COVID symptoms.
The Order expressly addresses two scenarios:
- Employee tests positive for COVID-19 or Employee displays one or more primary symptoms of COVID-19, should self-quarantine until:
- 24 hours have passed since resolution of fever;
- 10 days have passed since symptoms first appeared or since the date of the positive COVID-19 test result; AND
- Other symptoms have improved.
Note there is no provision for a “negative test” in this scenario, as there was in the prior Order EO 2020-36.
- Employee was in “close contact” with someone who tests positive for COVID-19 or with an individual who has principal symptoms of COVID-19, should self-quarantine until:
- 14 days have passed since the last close contact the Employee had with the individual;
- The individual displaying COVID-19 symptoms receives a negative COVID-19 test.
This raises the issue of what happens when an employee has been in close contact with a co-worker who has one or more symptoms (e.g., employee reports that he/she has had a fever). In such case, the recommendation has been to require those other employees in close contact with the symptomatic employee to quarantine for 14 days or until the symptomatic employee receives a negative COVID-19 test.
A challenging scenario is for the same symptomatic employee (e.g., employee reports that he/she has had a fever). The Order suggests that the employee remain on quarantine for 10 days after the fever goes away. However, if the employee obtains a rapid-COVID-19 test and it comes back negative, an argument may be made that the employee could be permitted to return to work before 10 days have elapsed. Employers need to consider the risk associated with a decision to return an employee to work under that scenario, in light of the Order. In addition, it should be noted that, certain Michigan business groups, including the Small Business Association of Michigan (SBAM), have asked the Governor’s Office for clarification of the scope of EO 2020-166, which is causing confusion among the business community.