Michigan recently joined a chorus of states adopting protections for businesses and governmental agencies related to COVID-19 exposures and adding protections and requirements for employees. On October 22, 2020, Michigan Governor, Gretchen Whitmer, signed three new pieces of legislation. Health care organizations will particularly take note because many of their employees have no work-from-home options. In addition, the prohibition against employees coming to work if they have COVID-19, were exposed to it or have symptoms of the virus specifically carves out an exception for health care workers.
COVID-19 Exposure Claims: Public Act 236 of 2020
This law, better known as the COVID-19 Response and Reopening Liability Assurance Act, provides that persons and certain entities who comply with all federal, state, local statutes, rules and regulations, executive orders and agency orders related to COVID-19 cannot be subject to liability for a “COVID-19 claim.” Public Act 236 defines a COVID-19 claim as “a tort claim or tort cause of action for damages, losses, indemnification, contribution, 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 transmission of COVID-19. COVID-19 claim also includes a tort claim made by or on behalf of an individual who has been exposed or potentially exposed to COVID-19, or any representative, spouse, parent, child, member of the same household, or other relative of the individual, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or other losses allegedly caused by the individual’s exposure or potential exposure to COVID-19. [A] COVID-19 claim does not include an administrative proceeding or civil action brought by a state or local government prosecutor or agency to enforce state statutes and regulations, executive orders, or state agency orders applicable to COVID-19.”
Significantly, under Public Act 236, employers will not lose the ability to claim immunity because of “an isolated, de minimis deviation from strict compliance” with COVID-19 related laws.
Public Act 236, which creates no private cause of action, applies retroactively to any claim that accrued after March 1, 2020. It does not affect remedies available under the State’s worker’s compensation law.
COVID-19 Exposure Claims by Employees: Public Act 237 of 2020
Public Act 237, which is specifically centered on employers and employees, 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 with all federal, state and local statutes, rules, regulations, executive orders and agency orders related to COVID-19.
This protection also applies retroactively to any claim or cause of action that accrued after March 1, 2020.
Significant for employers, and like Public Act 236, this law also states that an isolated, de minimis deviation from strict compliance with COVID-19 laws/rules unrelated to an employee’s or plaintiff’s injuries does not deny an employer the immunity protections provided by the law. Public Act 237 also does not affect remedies available under Michigan’s worker’s compensation law.
Obligations and Protections for Employees: Public Act 238 of 2020
Public Act 238 serves three main functions. First, it prohibits an employer from disciplining, discharging or retaliating against an employee who does not report to work due to COVID-19 related circumstances. Circumstances include exhibiting principal symptoms of COVID-19, testing positive for COVID-19 or having been in close contact with an individual who then tests positive for COVID-19 or displays the principal symptoms of COVID-19.
Second, Public Act 238 prohibits discrimination and retaliation against employees who have engaged in certain activities and provides remedies for any such discrimination or retaliation. These activities include compliance with law, opposition of non-compliance with the law and reporting of health violations related to COVID-19. Notably, these protections do not apply to employees who fail to take reasonable measures to obtain a COVID-19 test within three days of the employer’s request to get tested. Should an employee face discrimination or retaliation, employees are able to bring a civil action for appropriate injunctive relief, damages (of not less than $5,000.00) or both.
Finally, Public Act 238 prohibits employees from reporting to work if they have tested positive for COVID-19 or if they are displaying symptoms of COVID-19 until all of the following conditions are met:
- If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medications.
- 10 days have passed since the later of the following:
- The date the employee’s symptoms first appeared; and
- The date the employee received the test that yielded a positive result for COVID-19.
- The employee’s principal symptoms of COVID-19 have improved.
It also prohibits an employee who has close contact with an individual who tests positive for COVID-19 or displays the principal symptoms of COVID-19 from reporting to work until one of the following conditions is met:
- 14 days have passed since the employee last had close contact with the individual.
- The individual the employee had close contact with receives a medical determination that he or she did not have COVID-19 at the time of that contact.
Notably, however, this provision does not apply to health care employees or workers at a health care facility.
As with the employer protections noted in Public Acts 236 and 237, the employee protections of Public Act 238 also apply retroactively to March 1, 2020. And, it too does not affect remedies available under Michigan’s worker’s compensation law.
Practical Takeaways
Employers should strive to comply with all state and federal laws that relate to the COVID-19 pandemic. Compliance is directly rewarded with an important shield of immunity. A single instance of non-compliance will not destroy the immunity shield. These new laws are particularly important for health care employers, who, by the nature of their business, have not been able to allow many of their employees to work from home. Further, employers must not treat employees who either have COVID-19, or are reasonably at risk of developing it, any differently based on their COVID-19 related issues.
If you have any questions regarding this article, please do not hesitate to contact Saniya Khare at (248) 457-7852 or skhare@wp.hallrender.com or your regular Hall Render attorney.
Special thanks to law clerk, Jessica Biondo, for her assistance in preparing this article.
Hall Render articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
