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COVID Employer Liability Protection Law Passed in Michigan. Employers Must Have Safety Measures in Place to Avoid Exposure.

October 29, 2020

By Michael Burns, courtesy of SBAM Approved Partner ASE

On Thursday Governor Whitmer signed legislation that protects workers from employer discipline if they stay home because they have COVID-19 symptoms (PA 238). The legislation also grants immunity to businesses against lawsuits brought against them from independent contractors, customers, or guests who allegedly contract the virus from exposure at their place of business.

Under the liability protection laws (PA 236 & 237) businesses must follow federal, state, and local statutes rules, regulations, executive orders, and agency orders (Primarily MIOSHA in Michigan) that prescribe safety protocols businesses must have in place. “Isolated or “de minimus deviation” from compliance would not lose immunity under the law (Sec. 5). What constitutes minor or de minimus would undoubtedly be a question courts will be asked to determine, and that would be expensive.

This law applies to workers also but includes an exception stating traditional workers’ compensation rights, remedies, or protections are not impacted by this law (Sec. 8 (c)).

The employee protection legislation applies to any employer with one or more employees. The law states an employer shall not discharge, discipline, or otherwise retaliate against an employee who tests positive or displays the symptoms of COVID-19 and stays away from work until the following conditions outlined in the law are met. These being:

  • If the employee has a fever, 24 hours have passed since the fever has stopped without the use of fever-reducing medications.
  • Ten days have passed since either of the following, whichever is later:
    • The date the employee’s symptoms first appeared.
    • The date the employee received the test that yielded a positive result for COVID-19.
  • The employee’s principal symptoms of COVID-19 have improved.

An employee who has close contact (the CDC’s definition of close contact changed to being within six feet of an infected person for a total of 15 minutes or more in a 24 hour period beginning two days before illness onset) with an individual who tests positive for COVID-19 or with an individual who displays the principal symptoms of COVID-19 shall not report to work until one of the following conditions is met:

  • Fourteen days have passed since the employee last had close contact with the individual.
  • The individual with whom the employee had close contact receives a medical determination that they did not have COVID-19 at the time of the close contact with the employee.

If an employee can show that the employer did not follow the law, the employee may bring a civil action for injunctive relief or damages. Damages start at $5000.

A fourth piece of related legislation was also signed into law incorporating the definition of COVID-19 into the Michigan Occupational Health and Safety Act (PA 239).

Supplemental: Michigan Occupational Safety and Health Department published new FAQ’s on Monday addressing the need for a remote work policy, daily screening requirements, and face masking guidance for employers. Follow this link to the MIOSHA FAQ Workplace Safety Frequently Asked Questions: https://www.michigan.gov/leo/0,5863,7-336-100207_103271—,00.html

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