On Thursday, October 22, 2020, Governor Gretchen Whitmer signed into law a trio of bills providing certain COVID‑19-related protections to both workers and employers. All three new laws apply retroactively to March 1, 2020.
House Bill 6030
Titled the “COVID-19 Response and Reopening Liability Assurance Act,” the Act protects individuals and entities from liability for “COVID‑19 claims” as defined by the Act, so long as the person or organization complied 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. Further, the law provides that an isolated and de minimis deviation from strict compliance with such statutes, rules, regulations, executive orders or agency orders unrelated to the plaintiff’s injuries does not deny a person or entity the immunity provided under this law.
House Bill 6031
HB 6031 specifically amends the Michigan Occupational Safety and Health Act to protect employers from liability related to an employee’s exposure to COVID‑19. It provides that employers will not be liable for an employee’s exposure to COVID‑19 if the employer was 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. It also clarifies that isolated, de minimis deviation from strict compliance which is unrelated to the employee’s exposure will not remove the employer from such immunity.
House Bill 6032
House Bill 6032 requires employees to stay home from work if they: (1) test positive for COVID‑19; (2) display the “principal symptoms” of COVID‑19; or (3) have been in close contact with someone who is positive or has principal symptoms of COVID‑19. Such employees must not report to work until they meet certain criteria, which have been tweaked from the voided executive orders, specified in the Act:
Employees who test positive or display one of the principal symptoms of COVID‑19 must stay home until they meet all of the following:
If the employee has a fever, 24 hours have passed since the fever stopped without the use of fever-reducing medications.
Ten days have passed since either of the following, whichever is later:
The employee’s principal symptoms of COVID‑19 have improved.
Employees who have been in “close contact” with an individual who has tested positive or displayed the principal symptoms of COVID‑19 are prohibited from returning to work until:
14 days have passed since the employee last had contact with the individual; or
The individual to whom they were exposed receives a “medical determination” that they did not have COVID‑19 at the time of the close contact with the employee.
The law gives the Department of Health and Human Services (DHHS) the ability to define “principal symptoms,” but in the absence of a DHHS definition, “principal symptoms” are defined as they were in Executive Order 2020-172. The law also defines “close contact” as being within “approximately” six feet of an individual for 15 minutes or longer. Please see our October 22, 2020, eAlert titled CDC Issues Guidance on What is “Close Contact” for COVID‑19 Purposes for more information.
Like the executive order it replaced, the Act prohibits an employer from discharging, disciplining or otherwise retaliating against an employee who stays home for the prescribed period of time, including an employee who is off work because they displayed the principal symptoms of COVID‑19 and later tested negative. As was the case with Executive Order 2020-172, the Act contains certain exceptions to the close contact provisions for health care professionals, workers at a health care facility, first responders, child protective service employees, adult foster care workers and workers at correctional facilities.
In order to retain protection under the Act, an employee who stays home because they displayed principal symptoms of COVID‑19 must make “reasonable efforts” to schedule a COVID‑19 test within three days after receiving a request from their employer to get tested.
In addition to prohibiting employers from discharging, disciplining or retaliating against employees who stay home because they meet one of the criteria above, the Act also prohibits employers from taking similar actions against employees who: (1) oppose a violation of the Act; or (2) report health violations related to COVID‑19.
The minimum damages payable to a plaintiff who prevails in an action under the Act will be $5,000. The Act also specifies that it does not affect the rights, remedies or protections available under the Workers’ Disability Compensation Act of 1969.
Click on the House Bill number to view each individual bill: 6030, 6031 and 6032.
These new laws are just the latest developments in what has been an extended period of uncertainty and change for employers. Whether they reduce or increase the uncertainty remains to be seen. If you have any questions regarding this new legislation or other employment issues surrounding COVID‑19, please contact any member of Warner’s Labor and Employment Practice Group.