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Volume XI, Number 214


July 30, 2021

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Michigan Passes COVID-19 Laws Including a Liability Shield for Employers and Enhanced Worker Protections

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.

[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.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 301

About this Author

Adam S. Forman, Epstein Becker Green, Workforce Management Lawyer, Chicago, Detroit, Social Media Issues Attorney

ADAM S. FORMAN is a Member of the Firm in the Employment, Labor, and Workforce Management practice, based in Chicago and Detroit (Metro). As noted in the 2015 edition of Chambers USA, Mr. Forman “is a renowned expert in social media issues relating to the workplace” and also “focuses on litigation, training and preventive advice on the employment side.” A frequent writer and national lecturer on issues related to technology in the workplace, such as social media, Internet, and privacy issues facing employers, Mr. Forman is often interviewed by...

Eduardo Quiroga Law Clerk Epstein Becker Green
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EDUARDO J. QUIROGA* is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. He will be focusing his practice on employment litigation and wage and hour, trade secret, and employee mobility issues.

Prior to joining Epstein Becker Green, Mr. Quiroga worked as a Paralegal in the New York City branch of a property services labor union, where, among other things, he communicated with various government agencies regarding claim dismissals, conducted investigations in connection with...