Michigan Enacts Laws Limiting Employer Liability and Enhancing Employee Protections Related to COVID-19
On October 22, 2020, Michigan Governor Gretchen Whitmer signed into law three bills that provide a liability shield for employers and job protections for employees in connection with the COVID-19 pandemic.
The COVID-19 Response and Reopening Liability Assurance Act (HB 6030) (the “Act”) establishes the minimum requirements and liability standards for tort claims alleging exposure to COVID-19. Under the law, employers cannot be subject to liability for COVID-19-exposure claims if they complied with federal and state statutes or regulations, executive orders, state agency orders, and public health guidance in effect at the time of the conduct or risk that allegedly caused harm. Importantly, an employer will not lose the ability to claim immunity under the Act because of “an isolated, de minimis deviation from strict compliance” with COVID-19-related government directives. A “COVID-19 claim” is specifically defined as a claim or cause of action for damages or other relief “arising out of, based on, or in any way related to exposure or potential exposure to COVID-19, or to conduct intended to reduce the transmission of COVD-19.” The law applies retroactively to any claim that accrued after March 1, 2020. The Act does not create a private cause of action, nor does it affect an employee’s right or protections under the worker’s disability compensation act.
The second of three laws, HB 6031, amends the Michigan Occupational Safety and Health Act to add employer liability protections from COVID-19 claims under that law. As long as the employer complied with federal and state statutes or regulations, executive orders, state agency orders, and public health guidance related to COVID-19 at the time of the alleged conduct, an employer is immune from liability under the Michigan Occupational Safety and Health Act.
Lastly, HB 6032 contains several important employee protections, which apply retroactively to March 1, 2020. Under this law, an employer is prohibited from discharging, disciplining, or retaliating against an employee who (1) complies with the requirement of this law to not report to work due to COVID-19, (2) opposes a violation of this law, or (3) reports health violations related to COVID-19. However, these protections do not apply to an employee who displays the principal symptoms of COVID-19 and fails to make reasonable efforts to schedule a COVID-19 test within three days after receiving a request from the employer to get tested. Notwithstanding the employer liability protections, employees may bring a civil action for injunctive relief, damages (of not less than $5,000) or both, for violations of the law.
HB 6032 also provides that an employee who tests positive for COVID-19, displays its principal symptoms, or who has close contact with an individual who tests positive or with an individual who displays principal symptoms, must not report to work until either: (1) 14 days have passed since the employee last had close contact with the individual, or (2) the individual with whom the employee had close contact received a medical determination that they did not actually have COVID-19 at the time of the close contact with the employee. This section of the law does not apply to health care professionals, health care facility workers, first responders, child protective services employees, child care workers, and adult foster care facility workers.
Employers will undoubtedly continue to be confronted with lawsuits brought by employees related to COVID-19. It is therefore critical that employers ensure that their policies, procedures, and actions related to COVID-19 comply with federal, state, and local law, executive orders, and other state and local health agency orders and guidance to receive the broad liability protections of these new laws and minimize any exposure.