On October 22, 2020, the State of Michigan adopted public acts that are geared toward reopening the economy and encouraging employers, employees, and other businesses to comply with CDC, OSHA, and other laws and regulations for curtailing the spread of COVID-19. These new laws provide immunity from legal claims related to COVID-19 and protect employees from retaliation for staying home pursuant to government directives regarding exposure to the virus.
The first act creates an entirely new statute called the “COVID-19 Response and Reopening Assurance Act.” This act immunizes every “person”—defined broadly to include any individual or legal, governmental, or educational entity—from any “COVID-19 claim” as long as that person is acting “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.” A “COVID-19 claim” means any tort claim for damages or other relief based in any way upon exposure or potential exposure to COVID-19 or upon any “conduct intended to reduce transmission of COVID-19.”
The second act amends the Michigan Occupational Safety and Health Act to specifically immunize employers from claims based upon “an employee’s exposure to COVID-19 if the employer was operating in compliance with all federal, state, and local statutes, rules, and regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the exposure.”
Both of these acts provide some wiggle room. The immunity is not lost because of an “isolated, de minimus deviation from strict compliance with such statutes, rules, regulations, executive orders, and agency orders unrelated to” the claimant’s injuries.
The third act prohibits employees from reporting to work if they test positive for COVID-19, display its primary symptoms, or have had “close contact” with someone else who tests positive or displays its primary symptoms. If the employee tests positive for the virus, the employee must not report to work until 1) 24 hours have passed since a fever without the use of fever reducers, 2) 10 days have passed since the later of the employee’s first symptoms appearing or the employee receiving the test that yielded a positive result, and 3) the employee’s other primary symptoms have improved. Any employee who has had “close contact” with another individual infected or displaying symptoms may not return to work until either 1) 14 days from the last close contact or 2) the person with whom the employee had close contact received a medical diagnosis that they did not have the virus at the time of that close contact. This act specifically defines “close contact” as “being within approximately 6 feet of an individual for 15 minutes or longer.”
Employers may not retaliate against any employee for not reporting to work during the
se time periods outlined in the act, but they may require an employee who is merely displaying symptoms of the virus to be tested. Employees who do not make reasonable efforts to schedule a COVID-19 test within 3 days will lose the protections of the act. Employers also may not retaliate against employees who report employer violations of this act or who report other health violations related to COVID-19.
These new laws are retroactive to March 1, 2020, and they closely track earlier executive orders that were recently overturned. Businesses and employers who complied with and remain in compliance with those orders should continue be protected under the new law.
If you have any questions, please call your Kemp Klein attorney for advice.
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