Ask The Lawyer By: Daniel A. Gwinn, Esq, Covid in the Workplace?
WORKER WHO TESTED COVID-POSITIVE SAYS HE DIDN’T INTERACT WITH ANYONE; THREE CO-WORKERS SAY OTHERWISE
QUESTION: A couple of weeks ago, one of my co-workers tested positive for Covid-19. After hearing this, two of my co-workers went to the manager and told him we had been near the infected woman for about half an hour, the day before she informed everyone she had tested positive. The manager said the business had already investigated and determined the COVID-positive woman had not had any significant interaction with anyone else at work. He implied we were trying to get a few days off work to go on a vacation or something. All we want to do is make sure we don’t spread the virus to anyone else. Didn’t Gov. Whitmer sign an order saying people who have been exposed should stay home?
ANSWER: Sounds like your employer could be in trouble.
Gov. Gretchen Whitmer’s Executive Order #166 did indeed require most workers (with exceptions for people working in health care, etc.) who had close contact “with an individual who tests positive for COVID-19” to stay home and self-quarantine for 14 days “since the last close contact with the sick or symptomatic individual.” Workers who stayed home for such reason could not be discharged or otherwise retaliated against. In fact, if workers voluntarily decided to come to work despite their exposure, they would forfeit the protections from retaliation.
Close contact is defined as being within approximately 6 feet of someone for at least 15 minutes.
Gov. Whitmer’s Executive Order was ruled invalid on October 2 when the Michigan Supreme Court held the law which had granted the governor broad authority to issue executive orders was unconstitutional. The decision put orders the governor had issued since April 30 in limbo, including those related to unemployment, which businesses could open, mask requirements, etc.
This state of limbo did not last long. On October 14, the legislature passed a bevy of laws codifying many of the rules contained in the governor’s executive orders — including many (but not all) of those contained in Executive Order 166 — including the prohibition against reporting to work after exposure to someone with COVID-19. The bill was signed by Gov. Whitmer and became law — retroactive to March 1 — on October 22.
While the legislature extended employers some protection from COVID-related litigation, that protection does not extend to violations of the new law: An employee “aggrieved by a violation of this act” can bring a lawsuit for injunctive relief or damages of not less than $5,000.
Although the new state law does not require your employer to pay you for any time off, Division E of the federal CARES Act is more generous, allowing up to 80 hours paid sick time — up to a maximum of $5,110 — to workers who have to take time off the job (and are unable to telework) because they are “subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” The law applies only to employers with no more than 500 employees, and provides an exemption for health care providers and emergency responders. Employers who fail to provide the paid time off to eligible employees under the CARES Act could be subject to penalties for a violation of the Fair Labor Standards Act.
Note, both laws are set to expire at the end of 2020.
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By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
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