New Michigan COVID-19 Liability Laws

On October 22, 2020, Michigan Governor Gretchen Whitmer signed legislation reducing the liability of businesses and governmental agencies as it relates to COVID-19 exposure. There were three Acts passed that dealt with responding to COVID-19 risks and liabilities, all three of which retroactively apply beginning March 1, 2020.

Public Act 236 of 2020, or rather, “COVID-19 Response and Reopening Liability Assurance Act,” protects persons and entities from liability as long as they have complied with all federal, state, and local laws, as well as any regulations, executive orders, or agency orders. The protection is against any “COVID-19” claim, which is “a tort claim . . . for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to exposure or potential exposure to COVID-19.” The Act grants employers the ability to claim immunity from COVID-19 claims where there was an isolated deviation from strict compliance with COVID-19 laws that was unrelated to the plaintiff’s claims. The Act is does not create a private cause of action.

Public Act 237 of 2020 is specific to employees and amends the Michigan Occupational Safety and Health Act. Much like Public Act 236, this Act grants liability protection to employers for employee exposure to COVID-19 so long as the employer followed all relevant rules and regulations.

Public Act 238 of 2020 creates obligations and protections for employees:

Employers must not retaliate against an employee who does not report to work due to COVID-19 related circumstances, including testing positive or being in close contact with someone who displays common COVID-19 symptoms or tested positive;
Employers must not discriminate or retaliate against employees who do not report for work due to displaying COVID-19 symptoms but later test negative, or who oppose or report COVID-19 violations by the employer; unless the employee fails to obtain a COVID-19 test within three days of the employer’s request for the employee to obtain one; and
Employees must not report to work if they have tested positive for COVID-19 or are displaying symptoms until 24 hours have passed since the fever disappeared without any medication, 10 days have passed since the symptoms first appeared or the employee received a positive test (whichever is later), and the employee’s symptoms have improved.

Notably, Public Act 238 also prohibits an employee who has close contact with an individual who tests positive or displays COVID-19 symptoms from reporting to work until 14 days have passed since such contact or the other person is confirmed negative for COVID-19. This provision does not apply to health care workers.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare regulation. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.