Stay at home orderA Michigan woman sued her former employer for allegedly violating the Governor’s Executive Stay Home, Stay Safe” orders. This suit was filed in Michigan Circuit court on April 15, 2020. The former employee also filed a claim of retaliation with the Michigan Occupational Safety and Health Administration (MIOSHA).

Why it Matters

Michigan, like most states, is an “at-will” employment state. This means an employee can generally be terminated for any reason or no reason. But one exception is wrongful termination in violation of public policy, i.e., an employee cannot be terminated for refusing to break the law.

Here, Michigan’s Executive Order and subsequent extension is binding “law.” Thus, employers could be potentially liable for retaliating or terminating employees for refusing to violate these orders.

But whether an employer violates these orders is not clear-cut. This is because there is a distinction between “essential” and “non-essential” employees. Under the Executive Orders “non-essential” means the employer and employees must comply with Governor Whitmer’s Stay Home, Stay Safe Executive Order (No. 2020-24).

Also, employers could face liability for MIOSHA violations if an employee asserts they had to work in an unsafe workplace. Whether situations arising from the pandemic equate to “unsafe workplaces” will be contested.

Opening the Pandemic Employment Litigation Floodgates

Amber Gorby worked as a retail sales manager for Hometown Pharmacy. She had an office job and was responsible for ordering general merchandise for Hometown Pharmacy’s various locations. She asserts all of her essential duties could be and have been performed remotely.

However, the company’s president made no changes to her or her co-workers’ tasks, including allowing for telecommuting.

Ms. Gorb claims she voiced her concerns that failing to allow her to work remotely violated Gov. Whitmer’s executive order and it would be against the law to follow her employer’s directions. She further claims – despite a discipline-free 16-year tenure – she was fired hours after expressing her concerns. Ms. Gorby had been working there for over 16 years without discipline. The claim is pending in Newaygo County Circuit Court.

Adapting to the New “Pandemic Normal”

As Michigan businesses continue to operate under stay-in-place restrictions and prepare the lifting of these restrictions, they must consider how best to cope with a vast array of pandemic related issues. These include safely restarting operations in compliance with MIOSHA and otherwise protecting the safety of employees and customers.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article, or complying with Michigan or federal employment laws or litigating claims under both. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.

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