Michigan Governor Gretchen Whitmer recently signed into law four bills that encourage employers to resume business in compliance with all COVID-19 safeguards required under the various federal, state, and local statutes, rules, regulations, executive orders, and agency orders. The new laws provide a significant reward for an employer’s compliance: insulation from COVID-19–related liability—including tort claims and claims under the Michigan Occupational Safety and Health Act of 1974 (MIOSHA)—as long as the employer was implementing all safeguards legally required at the time of the incident giving rise to the claim. This protection extends beyond the employer-employee relationship. However, the protection does not alter any employer liability under the Michigan Workers’ Disability Compensation Act of 1969.
Moreover, employees are prohibited from returning to work for a defined period of time after testing positive for COVID-19, exhibiting the principal symptoms of COVID-19, or being in close contact with someone who has tested positive or exhibited the principal symptoms of COVID-19. The recently enacted laws also create a new private cause of action for an employee against an employer that disciplines, discharges, or otherwise retaliates against the employee for certain actions, including the employee’s refusal to return to work during the protected time periods.
The new laws are effective immediately and are made retroactive to March 1, 2020.
House Bill Nos. 6031 and 6101: MIOSHA Amendments
On October 14, 2020, the Michigan Occupational Safety and Health Administration issued emergency rules related to COVID-19. House Bill (HB) 6031 and HB 6101 have now amended MIOSHA itself to address employer liability for COVID-19-related claims. Through HB 6031’s addition of Section 85 to MIOSHA, employers are insulated from liability for MIOSHA claims based on an employee’s exposure to COVID-19. To receive this protection, an employer must have been “operating in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the exposure.” Moreover, an employer’s “isolated, de minimis deviation” from strict compliance with any statute, rule, regulation, or order unrelated to the employee’s exposure to COVID-19 will not deny immunity to the employer.
The grant of immunity from liability is thus available to employers that were in strict compliance with “statutes, rules, regulations, executive orders, and agency orders related to COVID-19 [and to an employee’s alleged exposure to COVID-19] that had not been denied legal effect at the time of the exposure.” Compliance may become more challenging as more legislation, rules, and regulations are continuously drafted, revised, and intertwined with other legislation, rules, and regulations. In addition, demonstrating which protections were in effect at which times may be challenging for employers, given the many changes in orders issued during the early months of the COVID-19 pandemic. Employers may want to consider retaining copies of the various safeguards they implemented and preparing to demonstrate when those safeguards were put in place and modified.
House Bill 6101 adds Section 85a to MIOSHA, which defines “COVID-19” to mean “the novel coronavirus identified as SARS-CoV-2 or a virus mutating from SARS-CoV-2, the disease caused by the novel coronavirus SARS-CoV-2, and conditions associated with the disease.” It is unclear at this time which conditions are considered to be “associated with the disease” and how such a determination will be made. Certainly, the potential exists for a wide range of conditions to be covered by the immunity provision of the law.
The above amendments to MIOSHA do not supersede the MIOSHA emergency rules recently issued on October 14, 2020. Relative to the controversial provision in the emergency rules regarding remote work where “feasible,” employers continue to wait for further guidance from the Michigan Occupational Safety and Health Administration regarding how to determine the feasibility of remote work. Guidance on this topic will be critical because the liability protections provided by new Section 85 appear to hinge on compliance with MIOSHA’s emergency rules.
House Bill No. 6030: The COVID-19 Response and Reopening Liability Assurance Act
House Bill 6030 insulates all persons (which includes corporate entities, partnerships, nonprofit charities, schools, colleges, universities, employees, agents, independent contractors, and volunteers) in a way similar to that of new Section 85 of MIOSHA. As long as the person or entity was “act[ing] in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 [that were in effect] at the time of the conduct or risk that allegedly caused harm,” the person or entity cannot be held liable for “a COVID-19 claim.” The act also contains the de minimis exception allowing departures from strict compliance with orders or laws that are unrelated to the plaintiff’s injuries.
The act broadly defines “a COVID-19 claim” to be any “tort claim or tort cause of action for damages, losses, indemnification, contribution, 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 transmission of COVID-19.” “Conduct intended to reduce transmission of COVID-19” includes “health screening, testing, contact tracing, and other actions intended to reduce transmission of COVID-19 in a workplace or on other premises.” The act protects from claims brought by, or on behalf of, any allegedly harmed individual, as well as claims brought by the individual’s representative, spouse, parent, child, household member, or other relative, for any injury “allegedly caused by the individual’s exposure or potential exposure to COVID-19.”
Notably, this act does not shield anyone from proceedings brought by a state or local prosecutor or agency. The act also does not create a cause of action or eliminate any required elements of existing causes of action. It also does not alter or affect the Workers’ Disability Compensation Act.
House Bill No. 6032: Private Causes of Action for Discrimination and Retaliation for Certain COVID-19–Related Activities
Similar to the governor’s prior executive orders, which have been invalidated, HB 6032 prohibits employers from discharging, disciplining, or otherwise retaliating against employees for (a) not reporting to work under circumstances authorized by the act; (b) opposing a violation of the act; or (c) reporting health violations related to COVID-19. The act does not define what constitutes a “health violation related to COVID-19.”
Under the language of the act, “[a]n employee who tests positive for COVID-19 or displays the principal symptoms of COVID-19 shall not report to work” until (1) 24 hours have passed since the employee’s fever stopped without the use of fever-reducing medications; (2) 10 days have passed since either the date that symptoms first appeared or the date of the employee’s COVID-19–positive test result; and (3) the employee’s principal symptoms have improved. (Emphasis added.)
Similarly, an employee who has had close contact with an individual who has tested positive for COVID-19 or displays the principal symptoms of COVID-19 “shall 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 receives a medical determination that the individual did not have COVID-19 at the time of close contact. (Emphasis added.)
The restrictions on employees who were in close contact with individuals who tested positive for COVID-19 or were displaying principal symptoms of COVID-19 do not apply to health care professionals, workers at health care facilities, first responders, child protective services employees, workers at child caring institutions, workers at adult foster care facilities, or workers at correctional facilities. However, the restrictions on employees who test positive or display principal symptoms themselves still apply to those employee categories.
Under the act, employees who display the principal symptoms of COVID-19 lose the protections of the act if they fail to make reasonable efforts to schedule COVID-19 tests within three days of receiving requests from their employers to be tested. Implicit in this provision is the right of an employer to require employee testing.
Employees “aggrieved by a violation of [the] act”—meaning those employees alleging to have been retaliated against, disciplined, or discharged for complying with the act, opposing a violation of the act, or reporting a COVID-19 health violation—may bring civil actions for injunctive relief and damages. The act explicitly creates a cause of action and requires that a court award a prevailing plaintiff damages of at least $5,000.
The act allows the director or chief medical executive of the Michigan Department of Health and Human Services (MDHHS) to define, and potentially update, what constitute the “principal symptoms of COVID-19.” The act states that in the absence of a definition provided by the MDHHS director or chief medical executive, the term “principal symptoms of COVID-19,” means “[o]ne or more of the following not explained by a known medical or physical condition”: fever, shortness of breath, or uncontrolled cough; or “[t]wo or more of the following not explained by a known medical or physical condition”: abdominal pain, diarrhea, loss of taste or smell, muscle aches, severe headache, sore throat, or vomiting.
The act defines “close contact” as being within 6 feet of an individual for 15 minutes or longer. Notably, this definition appears to be less encompassing than the U.S. Centers for Disease Control and Prevention’s (CDC) newest definition of “close contact,” which the CDC defines as being within 6 feet for 15 minutes or longer (cumulatively) over the course of a 24-hour period.
Ogletree Deakins will continue to monitor the Michigan Legislature, state agency rulemaking, and local public health department activity for further developments. In addition, Ogletree Deakins will report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.