Michigan Employers: If You're Compliant, You're Immune from Liability...
... but how do you know if you're compliant?
On Thursday October 22, 2020, Governor Whitmer signed three bills into law that provide protection for both employers and employees for circumstances related to COVID-19.
On the Employer side, HB6030 and HB 6031 provide immunity from liability, but only if the employer acted in compliance with all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19.
Titled the “COVID-19 Response and Reopening Liability Assurance Act,” HB 6030 provides employers with immunity from liability for a “COVID-19 claim” as long as the employer acted in compliance with all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19. A “COVID-19 claim” is defined to include a tort claim or tort cause of action for damages, losses, indemnification, or other relief arising out of or in any way related to exposure or potential exposure to COVID-19 or to conduct intended to reduce the transmission of COVID-19. In addition, HB 6031 amends the Michigan Occupational Safety and Health Act and affords liability protection to employers for an employee’s exposure to COVID-19, as long as the employer operated in compliance all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19.
The laws protecting employers with immunity from liability apply retroactively to any claim or cause of action that accrue after March 1, 2020.
Significantly for employers, the laws also state that an isolated, de minimus deviation from strict compliance with such statutes, rules, regulations, executive orders, and agency orders unrelated to an employee’s or plaintiff’s injuries does not deny an employer the immunity protections provided by the law.
On the Employee side, HB6032 provides protection from retaliation for employees that have, or may have been exposed to, COVID-19 and from retaliation for reporting COVID-19 health violations.
With the passage of HB 6032, employers are prohibited from discharging, disciplining or otherwise retaliating against an employee who does not report to work because they: (a) are exhibiting principal symptoms of, or have tested positive for, COVID-19 (even if the employee later tests negative); or (b) had close contact with an individual who tests positive for COVID-19 or displays the principal symptoms of COVID-19. Employees who, after displaying the principal symptoms of COVID-19, fail to make reasonable efforts to schedule a COVID-19 test within three days after receiving a request from their employer to get testing for COVID-19, are not protected by the law.
Employers are also not allowed to discharge, discipline, or otherwise retaliate against an employee for opposing a violation of the law or for reporting health violations related to COVID-19.
Employees may bring a civil action for appropriate injunctive relief, damages (of not less than $5,000.00), or both, for employer violations of the law. As with the employer protection noted above, the employee protections also apply retroactively to March 1, 2020.
What Employers Need to Do Now
If you are not in compliance, you do not get immunity, it is that simple. Employers should ensure they are up to date on, and complying with, all statutes, rules, regulations, executive orders, and agency orders related to COVID-19 to ensure they are eligible to receive the protections afforded by the liability shield law and minimize legal exposure. This includes having an up-to-date preparedness and response plan and adequately training employees on COVID-19 related policies.
If you would like to ensure that you are compliant and protected, contact NavigationHR to review your workplace practices and policies.