Ask The Lawyer By: Daniel A. Gwinn, Esq – COVID-19 Time Off?
PAID TIME OFF WAITING FOR COVID-19 RESULTS? YOU BETCHA!
QUESTION: After going to visit family up north, I came down with a sore throat and a cough. I informed my employer, who told me to get tested for COVID-19, and not to come back to work until I had a negative test. I do not have health insurance, so I scheduled a free test with the County. I had to wait five days for an appointment, and am still waiting on the results. After I had been off four days, I called my employer and told him I wouldn’t be able to get the results of my test for another two weeks. He told me not to bother coming back in. I’m still not feeling well, I don’t know whether I have COVID, and now it looks like I’m out of a job. Is there anything I can do?
ANSWER: Your employer needs to have a long sit-down with a lawyer, because he has managed to violate state and federal law and is in violation of Gov. Gretchen Whitmer’s latest Executive Order (Number 166) as well.
But ignorance of the law seems to be pretty common. Just over a week ago several McDonald’s and Marriot franchisees joined a growing list of companies cited for illegally denying paid leave to workers during the pandemic. According to news reports, businesses owe $690,000 in unpaid wages to some 527 employees – and that’s just the tip of the iceberg. The New York Times reported that many workers are not aware they may be eligible for paid sick leave.
Under Division E of the federal Families First Coronavirus Response Act, passed in March, you are entitled to up to 80 hours of paid sick leave at your regular rate of pay if you are “experiencing COVID-19 symptoms and seeking a medical diagnosis.” That paid sick time is in addition to any leave you may have accrued under Michigan’s Paid Medical Leave Act. There are some pre-requisites: The law applies only to employers with no more than 500 employees, and provides an exemption for health care providers and emergency responders.
If you are eligible, your employer cannot ask you to use any accrued PTO or Paid Medical Leave before using the 80 hours of paid sick leave under the federal law.
Your employer violated the law by refusing to give you paid time off, and then again by firing you. It’s illegal for an employer to discharge or discipline a worker who takes sick time under the Act. While you may not have cited the Act, you asked for time off (or were told to take it), and the law would apply. You can report your employer to the Department of Labor, Wages and Hours Division. Your employer could face an investigation and substantial penalties for his failure to give you paid time off.
The sad thing for your employer is that following the law would not have cost him much – the federal government will reimburse employers not only for paid sick time but also for the employer’s share of any health insurance premiums.
Gov. Whitmer’s Executive Order No. 166 is designed to keep people who have COVID -19, or who might have it, out of the workplace. The governor’s order states that anyone who has tested positive or shows COVID-19 symptoms should stay home until “24 hours have passed since the resolution of fever without the use of fever-reducing medications … 10 days have passed since their symptoms first appeared or since they were swabbed for the test that yielded a positive result and … other symptoms have improved.” (The list of COVID-10 symptoms keeps expanding, and now includes fever, cough, shortness of breath, chills, fatigue, loss of sense of taste and smell, diarrhea, nasal congestion, etc.).
While the governor’s order does not go as far as the federal law – workers who have no paid leave available do not have to be paid – it forbids employers from discharging, disciplining, or otherwise retaliating against an employee “for staying home when he or she is at particular risk of infecting others with COVID-19.” Employers must treat such workers as if they were taking paid leave under the Paid Medical Leave Act, MCL 408.961-967. This means that workers may be required follow the employers’ “usual and customary notice, procedural, and documentation requirements for requesting leave.” Under the Medical Leave Act, workers are allowed three days to produce the documentation.
Employers who violate the executive order have to pay the worker the paid time off that was withheld and are also subject to fines. You can report a suspected violation of the executive order to the Michigan Department of Labor and Economic Growth.
If you think you are eligible for paid time off and should not have been discharged, you may want to contact your employer before reporting him to the government, and mention some of the laws cited in this article.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3310 facsimile