On August 27, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-172. The Executive Order affirms that employers are prohibited from discharging, disciplining, or retaliating against employees who stay home when they or their close contacts are sick.

However, the Executive Order redefines the “principal symptoms of COVID-19” as follows:

The principal symptoms of COVID-19 are (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, 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.

This stricter standard of “not explained by a known medical or physical condition” makes clear that employees may be subject to disciplinary action if they remain home when COVID-like symptoms could be explained by a known medical or physical condition other than COVID-19 (e.g., allergies or a cold). A prior Executive Order defined the principal symptoms as “fever, sore throat, a new uncontrollable cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.”

Although the Executive Order gives employers a bit more room to address attendance issues in the pandemic environment, employers must keep in mind that applicable law still protects employees against discrimination and retaliation due to a disability, which could include conditions with similar symptoms that are not COVID related.

Executive 2020-172 is effective immediately.