On October 22, in a display of bipartisan politics, Michigan Governor Gretchen Whitmer signed four new COVID-19 and employment related bills into law which together provide employer immunity from liability from COVID-19 related claims and protections for employees affected by COVID-19.
Employers that Comply with All Government Orders Enjoy Immunity from Liability
For employers, the COVID-19 Response and Reopening Liability Assurance Act, Public Act 236 of 2020, provides that employers who comply with “all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19” in effect at the time of the conduct allegedly causing the employee harm, are immune from liability for said conduct. Critically, employers must be in compliance with all of the relevant rules, not most of them. If the conduct at issue occurred before the Michigan Supreme Court struck down Governor Whitmer’s executive orders, the law also makes clear that in order to enjoy immunity the employer must have been in compliance with those orders, as well.
House Bills 6031 and 6101, Public Acts 237 of 2020 and 239 of 2020, respectively, were also part of the package just signed into law. These acts amend the Michigan Occupational Health and Safety Act to provide immunity from liability under MIOSHA to employers who, again, comply with all “federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19.”
The requirement that employers be in compliance with all statutes, rules, regulations, executive orders, and agency orders in order to enjoy this protection from liability makes it even more important that Michigan employers develop and implement effective plans that comply with the most recent MIOSHA emergency rules (as well as all other regulations designed to combat the COVID-19 pandemic).
Employees Now Enjoy COVID-19 Related Protections
Also enacted was Public Act 238 of 2020, and act which provides several new protections for employees. The law requires employees who test positive for COVID-19 or who display the “principal symptoms” of COVID-19 to stay home from work until (1) the employee goes 24 hours with no fever, (2) ten days have passed since symptom onset or the date of the positive test, whichever is later, and (3) the symptoms have improved. Any employee who simply had close contact (i.e., within six feet and 15 minutes or more) with an individual who tests positive for COVID-19 or who displays symptoms of COVID-19 are required to stay home from work for either fourteen days after the close contact or until the individual with whom they had close contact tests negative for COVID-19. The Act does not require employees be paid for this time, but employers should ensure they are complying with the Michigan Paid Medical Leave Act and the Families First Coronavirus Relief Act, if applicable.
The law further provides that an employer cannot discharge, discipline, or otherwise retaliate against an employee for complying with the Act’s requirements, even if the employee later tests negative for COVID-19. Importantly, the law provides a private right of action for violations with damages set at a minimum of $5,000. The law applies to public and private employers and is retroactive to March 1, 2020.
Employers with any operations in Michigan should ensure that they are in compliance with all government orders and rules relating to COVID-19. Since these requirements are ever changing, we recommend reaching out to an attorney in Dykema’s Labor and Employment Law Group for guidance.
Employers must also realize that their Michigan employees now have statutory rights, as well as mandates, to take leave from work under certain conditions. These rights must be accommodated and therefore employers should exercise caution before challenging a claimed right to a leave are taking adverse action against employees who seek or take leave under the protected conditions. Dykema’s attorneys are available to help employers navigate through the requirements of Public Act 238, as well.
 The close-contact provisions of the Act do not apply to health care professionals, workers at health care facilities, first responders, child protective services employees, workers at child caring institutions, adult foster care employees, or correctional facility employees as those terms are defined in other statutes.