Michigan Enacts COVID-19 Laws Providing Protections to Both Employers and Employees

Following the Michigan Supreme Court’s ruling in early October 2020 that held Governor Gretchen Whitmer did not have the authority after April 30, 2020, to issue or renew executive orders related to the COVID-19 pandemic, Governor Whitmer signed into law three bills that provide protections related to COVID-19 to both employers and employees. The new laws are effective immediately and are made retroactive to March 1, 2020.

Public Act 236 of 2020 (COVID-19 Response and Reopening Liability Assurance Act)

Public Act 236 of 2020 provides employers with immunity from liability for a COVID-19 claim, provided that the employer “act[ed] in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19.” PA 236 defines a “COVID-19 claim” as a tort claim or tort cause of action for damages, losses, indemnification, or other relief arising out of, based on, or in any way related to, exposure or potential exposure to COVID-19, or to conduct intended to reduce the transmission of COVID-19.

Public Act 237 of 2020 (Amendment to the Michigan Occupational Safety and Health Act)

Public Act 237 of 2020 amends the Michigan Occupational Safety and Health Act to provide protection to employers from liability for an employee’s exposure to COVID-19, provided that the employer operated in compliance with all federal, state, and local statutes, rules, and regulations, executive orders, and agency orders related to COVID‑19.

Public Act 238 of 2020

Public Act 238 of 2020 prohibits employers from discharging, disciplining, or otherwise retaliating against employees for (a) not reporting to work under the circumstances authorized by the Act; (b) opposing a violation of the Act; or (c) reporting health violations related to COVID-19.

Under PA 238, an employee who tests positive for COVID-19 or displays the principal symptoms of COVID-19 must not report to work until:

• 24 hours have passed since the employee’s fever stopped without the use of fever-reducing medication;
• Ten days have passed since either the date the employee’s symptoms first appeared or the date the employee received the test that produced the positive COVID-19 result; and
• The employee’s principal symptoms have improved.

Additionally, PA 238 prohibits an employee who has been in close contact with an individual who tests positive for COVID-19 or who displays the principal symptoms of COVID-19 from reporting to work until either (1) 14 days have passed since the employee last had close contact with the individual; or (2) the individual with whom the employee had close contact receives a medical determination that he or she did not have COVID-19 at the time of contact. The restrictions on employees who were in close contact with individuals who test positive for COVID-19 or were displaying principal symptoms of COVID-19 do not apply to health care professionals, workers at health care facilities, first responders, child protective services employees, workers at child caring institutions, workers at adult foster care facilities, or workers at correctional facilities.

PA 238 defines ”principal symptoms of COVID-19” as meaning one or both of the following:

• One or more of the following not explained by a known medical or physical condition: fever, shortness of breath, or uncontrolled cough.
• Two or more of the following not explained by a known medical or physical condition: abdominal pain, diarrhea, loss of taste or smell, muscle aches, severe headache, sore throat, or vomiting.

The Act also defines “close contact” as being within 6 feet of an individual for 15 minutes or longer.

An employee loses the protections set forth in PA 238 if, after displaying the principal symptoms of COVID-19, he or she fails to make reasonable efforts to schedule a COVID-19 test within three (3) days after receiving a request from his or her employer to be tested.

Employees may bring a civil action for injunctive relief, damages (of not less than $5,000.00), or both, for the employer’s alleged violation of the law.

Keller Thoma will continue to monitor the federal and state legislation and regulations with respect to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.