Employment Law Questions about the Michigan Shut Down
In response to the rapid spread of coronavirus in the State of Michigan, Governor Gretchen Whitmer issued Executive Order No. 2020-21 on Monday, March 23rd, 2020, ordering the temporary requirement to suspend activities that are not necessary to sustain or protect life. This order took effect on Tuesday, March 24th, and is in effect for three weeks. For most people, the biggest impact of the order is a restriction on who can leave their home to go to work. Here are some answers to questions we have been getting since Monday about the new order.
What does the order require?
The order says all individuals currently living within the State of Michigan must stay home or at their place of residence, with some exceptions. It bans all public or private gatherings of any number of people who are not of the same household (also with exceptions.) Additionally, the order says that when people leave their house under those exceptions, they must adhere to social distancing measures including staying six feet from other people.
What about my work?
The order says: “No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.” The order then gives the exceptions to the general “stay at home” rule that qualify for allowing people to leave their homes to work.
Who is allowed to leave home to work?
Workers who are necessary to sustain or protect life are defined as “critical infrastructure workers” under the order and are allowed to leave their homes to work as necessary. In addition, workers whose in-person presence is necessary to conduct the bare minimum for their company, such as ensuring security, maintaining equipment or live animals, or making it possible for everyone else to work remotely, are allowed to work out of the home. However, any in-person activities that are not necessary to sustain life or minimal business protections are not allowed.
These are businesses / industries / jobs that are considered to be critical infrastructure under the order, meaning in-person work is permitted:
-Health care and public health;
-Law enforcement, public safety, and first responders;
-Food and agriculture;
-Water and wastewater;
-Transportation and logistics;
-Communications and information technology, including news media;
-Other community-based government operations and essential functions;
-Chemical supply chains and safety;
-Defense industrial base;
-Child care workers, to the extent necessary to serve the children or dependents of critical infrastructure workers;
-Workers at designated suppliers and distribution centers; and
-Businesses and organizations that supply food and shelter to the needy.
My job isn’t on there but I think I am essential. Can I work?
It depends on what you do. The first directive of the order is that it is to be construed broadly to prohibit in-person work that is not necessary to sustain or protect life, so if you are sure your work is not covered by this order then no, you should not leave your home to work. It is understood and expected that this will be a huge disruption to most businesses.
Of course, it is possible that your work is considered to be exempt by this order even if you don’t see it listed above. What you do may fall under the umbrella of one of the categories of essential infrastructure listed in the order.
My job is listed, but I don’t think I am essential. Do I have to work?
The definition of what is “essential” to sustain or protect life includes providing the support system for those whose jobs are essential to protect or sustain life, as well as necessary services for those staying home. If the only workers allowed to leave their homes were those working in hospitals, where would people get their food? Who would make sure the hospital workers are getting paid? Who would care for their children while they work? Who would make sure our utilities stay on while we are stuck at home? Who will keep us safe from fires and prevent looting? Who will report the news so everyone knows what is going on? We live in a society, and certain services beyond saving lives are necessary to ensure that people can be safe and healthy, including providing the basic infrastructure needed to save lives.
My employer is making me leave the home to work and I don’t think I should. What can I do?
The order does not provide for any sort of cause of action, so you cannot sue your employer if you believe you should be ordered to stay home and your employer has directed you to come to work. However, if you leave your home to do in-person work and you are not covered by the order, you could be in violation of the order yourself.
If your employer tells you that you need to physically come in to work and you don’t think you should, the first step is to be SURE about whether you are covered by the order. As stated above, some of the jobs defined as essential and allowed to work out of the house are broad. Your job may be considered essential even if you don’t think it is. However, if your job is one that truly is not covered and you should not leave your house to work, your employer should not be ordering you to do so.
If your employer is in violation of the order, you can report them to the State of Michigan. At this time, it is not known what action, if any, the state will take against a company who violates the order.
Can I be fired for refusing to come to work?
Many people have asked us about what can happen to them if they stay home because of the order, against the wishes of their employers. The answer is “it depends.” There is no cause of action under the order for you to sue your employer, so the order does not create a law under which you can recover for any sort of wrongful termination. HOWEVER, Michigan does have a cause of action called “public policy discharge.” In Michigan, it is illegal to fire an employee for refusing to violate the law or in contravention of public policy. If an employee was ordered to come to work and refused to do so because it would be in violation of the order, and was fired for that refusal, that would be a clear example of public policy discharge.
We have also gotten calls from people who are allowed to continue working under the order but are uncomfortable doing so. For these people, there is no possible public policy discharge claim if they get fired. If your work is classified as “essential” under the order such that you are allowed to continue in-person work during the shutdown, your employer can require you to do so. Failure to come in to work can be treated like it would any other time without a shutdown, since the shutdown doesn’t order you not to work. If you are unsure about whether your work is considered “essential” under the order, be aware of this distinction. You may think you are not essential and refuse to come in, but if you get fired and it turns out that you WERE essential under the order, you do not have a claim for public policy discharge.
Do I get paid for the time I am not able to work?
It depends. Your employer can always choose to pay you MORE than they are required to pay under the law. Additionally, employers are required to pay people for time actually spent working, so if you are working remotely you should be paid for hours worked. However, if your hours are reduced or you are completely unable to work, the order does not require your employer to pay you at this time.
The Federal Families First Act takes effect on April 2nd, and will allow for some paid leave to some employees who are unable to work because of coronavirus. It is possible that if you are still employed but unable to work, you will get pay under Families First that will cover part of the Michigan shutdown.
Can I be laid off because of the order?
Yes. Michigan is an at-will state, and most employees can be laid off for any reason or no reason, as long as there is not an illegal reason for the termination. The order does not prohibit employers from laying off employees, and protecting a legitimate business interest is generally considered to be a legal basis for termination. Unfortunately, this order and the overall circumstances created by coronavirus will cause some businesses to go under. The only reason it would be illegal to let someone go as a result of this order would be if that person were selected for layoff for an illegal reason (for example, being selected as one of the few to be let go because of race or gender or because of having engaged in protected activity.)
Besides work, what other reasons can I leave my home?
Individuals may leave their home for the following reasons, in addition to work that is permitted under the order:
-To engage in outdoor activities such as walking, running, or biking, as long as you stay six feet from other people who do not live with you;
-To seek medical or dental care that is necessary to address an emergency or preserve health and safety, or to obtain medication;
-To obtain necessary services or supplies, such as groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operations of your home;
-To care for a family member, minors, dependents, the elderly, persons with disabilities, or a family member’s pet;
-To visit an individual under the care of a health care or extended care facility;
-To attend necessary / emergency legal proceedings;
-To work or volunteer for an organization providing food, shelter, or other necessities for needy individuals;
-To return to your residence within the state;
-To leave the state for a residence outside the state; and
-To travel between two residences within the state.
There are likely many more questions that will arise as a result of this order, other state orders that have been put into place, and federal and local orders relating to coronavirus. Please feel free to call us if you have questions, and above all stay safe and healthy.