Given the unprecedented nature of Governor Gretchen Whitmer’s Executive Order 2020-21 (the “Stay Home, Stay Safe Order”) barring all in-person work that is not “necessary to sustain or protect life or to conduct minimum basic operations” employers have scrambled to determine whether their business is covered by the order and whether their employees can continue to come to work consistent with the terms of the order. Similarly, employees who have been told to report to work, despite the Stay Home, Stay Safe Order, may wonder whether their jobs are “ necessary to sustain or protect life or to conduct minimum basic operations” such that they are required to work.
So, what happens when an employer tells an employee to work, and the employee believes that instruction violates the Stay Home, Stay Safe Order?
The Employer’s Rights, Duties, and Best Practices.
The Stay Home, Stay Safe Order does not ban all in-person work. There are several exceptions, not only for entire industries (including, but not limited to, health care, public safety services, energy services, food supply chain, IT, financial services, transportation, and logistics) but also for workers in any industry that are “necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.” The Stay Home, Stay Safe Order requires any employer (whose industry is not entirely exempted by the Stay Home Stay, Safe Order) who wants to identify and exempt employees as “necessary to maintain operations” to do so in writing. Best practices for such a notice include dating the notice, citing to the section of the Stay Home, Stay Safe Order that applies, and identifying what work the employee performs that falls within the exception.
While the Stay Home, Stay Safe Order does not provide any mechanism for resolving disputes over whether an employer may require an employee to appear for in-person work during the crisis, Michigan law does offer protection to workers that dispute their employer’s requirement that they appear for in-person work in violation of the Stay Home, Stay Safe Order. Specifically, if an employee believes he or she is being required to work in violation of the Stay Home, Stay Safe Order, the employee can make a formal complaint to the Michigan Attorney General. Likewise, the employee may also refuse to work as directed.
If the employer terminates the employee, then the employee has two remedies available: (1) the employee can file an action under the Whistleblower Protection Act (“WPA”); or (2) the employee can make a claim for termination in violation of public policy.
The two claims are similar, but not identical.
The claim under the WPA requires the employee to prove that he or she “reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state” and that as a result of that report or threat to report the employer “discharges, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment.” MCL 15.361, et seq. Importantly, any claim for violation of the WPA must be brought within 90 days of the employee’s termination or the date on which the employer acts to affect the employee’s compensation, or the terms and conditions of the employee’s work.
The common law claim for termination in violation of public policy requires proof that the employer terminated the employee based on the employee’s “refraining from violating the law.” Landin v. Healthsource Saginaw, Inc., 305 Mich. App. 519, 526, 854 N.W.2d 152, (2014). This claim does not require an employee report or threaten to report the activity to a public body.
Thus, an employee is protected if he or she is terminated either because: (1) the employee was about to report or did report the employer’s unlawful demand that the employee work in violation of the Stay Home, Stay Safe Order (the WPA claim); or (2) the employee was fired for refusing to work in violation of the Stay Safe, Stay Home Order (the “Public Policy” claim).