New Regulations Providing Immunity for Employers and Protection for Employees

UPDATE 10/23/2020: The below post was written while the legislation had been submitted to the Governor for consideration and approval. On October 22, 2020, Governor Whitmer signed the bills discussed below, officially making them Michigan Law.


On October 14, 2020, the Michigan Legislature passed several bills to address the ongoing novel coronavirus pandemic. These bills both create immunity for businesses and employers who comply with safety regulations, and also protection for employees who have to miss time from work because the are at risk for spreading the virus. It is anticipated that Governor Whitmer will sign these bills and enact them into law in the near future.


Immunity For Businesses and Employers


"A person who acts 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 conduct or risk that allegedly caused harm is immune from liability for a COVID-19 claim."


With House Bill 6030, the Covid-19 Response and Reopening Liability Assurance Act, the Legislature has protected employers, businesses, and individuals from COVID-19 related lawsuits. As long as the business can show that they were in compliance with the federal, state, and local statutes in effect at the time, they cannot be successfully sued by someone claiming that they were wrongfully exposed to and subsequently contracted the virus. This extends to secondary and tertiary exposures as well.


Importantly, this immunity only applies if the business was actually in compliance with the various rules and regulations that have been enacted in an attempt to decrease the spread of COVID-19. While the act notes that immunity will still apply even if there is an "isolated" or "de minimis" (lawyer for "minor" or "trivial") deviation from strict compliance, it nevertheless illustrates the importance for small business to stay up to date on the regulations regarding their industry and keep detailed records of their compliance with those regulations.


Additionally, while you may have heard that many of the Governor's executive orders were recently ruled invalid by the Michigan Supreme Court, showing your company's compliance with those orders is still essential in order to receive this immunity. By using the language, "that had not been denied legal effect at the time of the conduct or risk," the Legislature has noted that even though the orders have since been held unconstitutional, a business must nevertheless have complied with them in order to receive immunity from lawsuits.


This act is retroactive to March 1, 2020.


Protections for Employees


"An employer shall not discharge, discipline, or retaliate against an employee who does any of the following (1) Complies with Section 5 of this Act, including where an employee who displays the principal symptoms of COVID 19 does not report to work and later tests negative for COVID-19; (2) Opposes a violation of this act; (3) reports health violations related to COVID-19"


House Bill 6032 puts into law many of the protections that were previously contained with the "Protecting Workers Who 'Stay Home Stay Safe'" Executive Orders issued by Governor Whitmer. Previously, employees had to rely upon executive orders that could be changed at any time and who's enforceability in court was uncertain (as illustrated by the recent Supreme Court ruling). However, all Michigan employees who have to quarantine because they are ill or have been exposed to someone who is ill due to COVID-19, can now have consistent guidelines and protections to follow.


The Act provides that an employee shall not report to work if the employee tests positive for COVID-19, OR displays the principal symptoms of COVID 19. In either such case, the employee may not return to work until the following:

  1. if the employee has a fever, the employee has been fever-free for 24 hours without the use of fever-reducing medications; AND

  2. Ten days have passed since the latter of:

  3. The date the employee's symptoms first appeared;

  4. The date the employee received a positive COVID-19 test result;

  5. The employee's principal symptoms of COVID-19 have improved.

The Act also provides that an employee shall not report to work if the employee has had close contact with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19. In these cases, the employee may not return until the following:

  1. Fourteen days have passed since the last close contact with the individual;

  2. The individual receives a medical determination that they did not have COVID-19 at the time of the close contact with the employee.

It should be noted that the provisions associated with not reporting to work after close contact with an individual do not apply to health care professionals, workers at health care facilities, first responders, child protective service employees, workers at child caring institutions, workers at adult foster care facilities, or workers at correctional facilities.


If an employee complies with the provisions of this act, an employer may not fire, discipline, or retaliate against the employee as a result.


Importantly, the act provides for an independent cause of action against an employer who retaliates against an employee in violation of the act. The executive orders that the act replaces did not set forth such provisions, causing a great deal of uncertainty as to how they would be enforced. However, the legislature has alleviated that uncertainty by noting that aggrieved employees may bring lawsuits in circuit court against their employer and may seek remedies such as injunctive relief (reinstatement to their former position) or damages (lost wages).


Conclusion


If it seems as though the rules and regulations surrounding how to handle the workplace in the age of the novel coronavirus are changing every day - that's because they are. If you operate a small business, it is important that you stay on top of these changes and keep careful track of what you are doing to stay in compliance. As an employee, you should make sure that you know your rights in the workplace so that you can protect yourself, your coworkers, and your family.


If you need assistance with staying on top of these issues, contact us today.


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