October has brought a weekly flurry of changes to Michigan’s COVID-19 legal landscape. [1] On Thursday October 22, 2020, Governor Whitmer added to this recent activity by signing three bills into law that provide employers with significant liability protection and employees with job protections related to COVID-19.
Employer Protections: Liability Shield
Titled the “COVID-19 Response and Reopening Liability Assurance Act,” HB 6030 provides employers with immunity from liability for a “COVID-19 claim” as long as the employer acted in compliance with all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19. A “COVID-19 claim” is defined to include a tort claim or tort cause of action for damages, losses, indemnification, or other relief arising out of or in any way related to exposure or potential exposure to COVID-19 or to conduct intended to reduce the transmission of COVID-19. In addition, HB 6031 [2] amends the Michigan Occupational Safety and Health Act and affords liability protection to employers for an employee’s exposure to COVID-19, as long as the employer operated in compliance all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19.
The laws protecting employers with immunity from liability apply retroactively to any claim or cause of action that accrue after March 1, 2020.
Significantly for employers, the laws also state that an isolated, de minimus deviation from strict compliance with such statutes, rules, regulations, executive orders, and agency orders unrelated to an employee’s or plaintiff’s injuries does not deny an employer the immunity protections provided by the law.
Employee Protections: Freedom from Retaliation
With the passage of HB 6032, employers are prohibited from discharging, disciplining or otherwise retaliating against an employee who does not report to work because they: (a) are exhibiting principal symptoms of, or have tested positive for, COVID-19 (even if the employee later tests negative); or (b) had close contact with an individual who tests positive for COVID-19 or displays the principal symptoms of COVID-19. [3] Employees who, after displaying the principal symptoms of COVID-19, fail to make reasonable efforts to schedule a COVID-19 test within three days after receiving a request from their employer to get testing for COVID-19, are not protected by the law.
Employers are also not allowed to discharge, discipline, or otherwise retaliate against an employee for opposing a violation of the law or for reporting health violations related to COVID-19.
Employees may bring a civil action for appropriate injunctive relief, damages (of not less than $5,000.00), or both, for employer violations of the law. As with the employer protection noted above, the employee protections also apply retroactively to March 1, 2020.
What Employers Should Do Now
Employers should ensure they are up to date on, and complying with, all statutes, rules, regulations, executive orders, and agency orders related to COVID-19 to ensure they are eligible to receive the protections afforded by the liability shield law and minimize legal exposure. This includes having an up-to-date preparedness and response plan and adequately training employees on COVID-19 related policies.
Epstein Becker Green assists employers in drafting COVID-19 preparedness and response plans. In addition, we provide fully compliant training resources for employers and are constantly monitoring COVID-19 related updates. Should you have any questions or wish further guidance on this or any COVID-19 issue during the pandemic, please contact Adam S. Forman, or your Epstein Becker Green attorney.
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[1] To highlight a few, on October 2, 2020, Michigan’s Supreme Court ruled that the Emergency Powers of the Governor Act (EPGA), upon which Governor Gretchen Whitmer relied in issuing over 100 COVID-19 related executive orders, was an unconstitutional delegation of power by the legislative branch (In re Certified Questions from the U.S. Dist. Ct., W.D. Mich., No. 161492 (Oct. 2, 2020)). On October 14, Michigan Occupational Safety and Health Administration promulgated an emergency rule that mirrored requirements for training and preparedness and response plans set forth in prior executive orders.
[2] HB 6101 amends the Michigan Occupational Safety and Health Act to add terms and definitions pertaining to HB 6031.
[3] This section does not apply to an employee who is a healthcare professional, a worker at a health care facility, a first responder, a child protective service employee, a worker at a child caring institution, a worker at an adult foster care facility or a worker at a correctional facility.