Michigan Governor Gretchen Whitmer signed into law bipartisan legislation known as the “COVID-19 Response and Reopening Liability Assurance Act” (COVID Assurance Act).
Why it Matters:
This Act provides protections to Michigan workers relating to the spread of COVID-19 and protecting businesses that implement strict safety measures to keep workers, customers, and their families safe. Further, it is retroactive to March 1, 2020.
The Act was praised by labor and business organizations alike. It is supported by the Michigan Chamber of Commerce and Governor Whitmer’s press release included favorable quotes about the legislation from Michigan AFSCME Council 25’s President Lawrence A. Roehrig.
Under the COVID Assurance Act:
- Employers must allow workers who are exposed to COVID-19 or exhibit the symptoms of COVID-19 to stay home, and prohibit retaliation against employees for staying home when sick or exposed to the virus.
- Employers may face bills also provide a minimum damages award of $5,000 for violations. Awards may be higher than that in the event of more serious conduct or injuries.
The COVID Assurance Act does not affect rights, remedies, or protections under Michigan’s worker’s disability compensation act.
What’s more, if a Michigan business complies with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19, including epidemic orders and rules, they are not liable:
- For a person becoming sick at the business; or
- Under the Michigan Occupational Health and Safety Act for a worker becoming sick at work.
Also, employers do not even need to be in complete compliance with applicable rules or regulations to benefit from the Act’s protections: An “isolated, de minimis deviation from strict compliance” from applicable COVID-19 statutes, rules, regulations, executive orders, and agency orders that is “unrelated” to the plaintiff’s injuries will not eliminate immunity provided by the Act.
Thoughts on the Legislation – Potentially Confusing and likely an Insurmountable Hurdle to Liability
If you are a business owner, the COVID Assurance Act is great news. It will protect against frivolous lawsuits. But it will also likely essentially eliminate liability for most plaintiffs suing over contracting COVID-19.
- First, in all except extreme situations of self-isolation, proving where you contracted the virus may be an insurmountable hurdle for plaintiffs. And a plaintiff will need to be prepared to show they did not bring the virus into the business.
- Second, the “substantial compliance” component of the COVID Assurance Act will be a go-to defense. It’s unclear how businesses will be graded on this (e.g., if 85% of employees wear masks, is that good enough? If social distancing is mostly enforced, is that “substantial compliance?”) but it will likely be a favorable curve.
So what’s not to love? The Act’s requirement to comply with applicable COVID-19 regulations from federal, state, and local governments will be problematic. This is a lot of regulation to track. And these regulations change as more is learned about the virus.
Further, the regulations from the various branches of federal, state, and local governments don’t always match up. At the federal level, you see this almost every time President Trump speaks or Tweets; He’s routinely contradicting or even denigrating subject matter experts at the Centers for Disease Control or state health departments, including on things as basic as wearing a mask to prevent the spread of the virus.
Or consider his past promotions of unproven or outright hazardous practices. Remember when he (in)famously opined that injecting disinfectant into the body could be “tremendous.”
Nonetheless, to benefit from the protections under this legislation, business owners must invest in staying on top of applicable coronavirus legislation, rules, orders, and regulations. And they will need to show they regularly enforced those COVID-19 rules in the workplace. Both won’t always be easy, but the protections should be well worth the effort.
Use this link to contact Michigan attorney Jason Shinn if you have questions about this article, or complying with Michigan or federal employment laws, or litigating claims under both. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.