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Michigan Governor Gretchen Whitmer (D) signed four bills into law on October 22, 2020 - - H.B. 6030, H.B. 6031, H.B. 6032, H.B. 6101 -- to limit unwarranted COVID-19 exposure-related lawsuits against businesses and protect workers against workplace infection. The Insights Association supported the bills, which were locked together as a legislative package.

While the Insights Association has issued reopening guidelines for marketing research and data analytics businesses, litigation protection is a top public policy priority to ensure the industry’s ability to properly get back to work. The new Michigan laws join existing protections in Alabama, Arkansas, Iowa, Louisiana, Oklahoma, and Utah.

• H.B. 6031 and H.B. 6101 establish conditions for immunity from civil liability for an employer whose employee is exposed to COVID-19.
• H.B. 6032 prohibits COVID-19-infected employees from reporting to work, prohibits certain employer actions against certain employees, and provides remedies.
• The COVID-19 Response and Reopening Liability Assurance Act (H.B. 6030) reasonably limits liability for coronavirus-related exposure (except for intentional harm or gross negligence), and sets a duty of care for owners/operators of premises, a safe harbor for following government regulations and public health guidance, and a requirement for COVID-19-related litigation to involve an actual injury.

Michigan H.B. 6030

H.B. 6030 (chaptered as PA 236'20), the Michigan COVID-19 Response and Reopening Liability Assurance Act, forbids anyone from bringing or maintaining “a civil action alleging a COVID-19 claim unless the claim alleges harm related to a minimum medical condition,” unless “the conduct that is the subject of the COVID-19 claim was a deliberate act intended to cause harm.”

Further, the new law prevents anyone from being “liable for a COVID-19 claim that arises from exposure of an individual to COVID-19 on premises owned, leased, managed, or operated by” them, or during an activity they managed, “unless it is shown by clear and convincing evidence that the injuries were caused by a reckless disregard of a substantial and unnecessary risk that an individual would be exposed to COVID-19, or the person engaged in a deliberate act intended to cause harm."

Anyone operating “in substantial compliance with or reasonably consistent with a federal or state statute or regulation, executive order, or public health guidance that was applicable at the time to the conduct or risk that allegedly caused harm” is not “liable for a COVID-19 claim or a claim related to conduct intended to reduce transmission of COVID-19.” In a case where more than one “public health guidance” applies “to the person or conduct at issue at the time of the alleged harm,” that safe harbor is “satisfied by conduct reasonably consistent with any public health guidance.” However, property owners/operators are still liable for failing “to disclose hidden dangers or safety hazards that are known to the owner or occupant of the premises that might possibly result in the death or injury or loss of or damage to the property.”

Michigan H.B. 6030 applies “retroactively to any claim or cause of action that accrues after January 1, 2020,” for the duration of the pandemic emergency.

“Conduct intended to reduce transmission of COVID-19” means “health screening, testing, contact tracing, and other actions intended to reduce transmission of COVID-19 in a workplace or on other premises.”

A “COVID-19 claim” is defined as “a claim or cause of action 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, or a person's actions intended to maintain workplace safety. COVID-19 claim also includes, but is not limited to, a claim made by or on behalf of an individual who has been exposed or potentially exposed to COVID-19, or any representative, spouse, parent, child, member of the same household, or other relative of the individual, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or other losses allegedly caused by the individual's exposure or potential exposure to COVID-19.”

"Gross negligence" means “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

"Minimum medical condition" is “any of the following: (i) A positive diagnosis of COVID-19, or symptoms consistent with COVID-19, that required inpatient hospitalization of at least 24 hours. (ii) A medical illness or physical injury or condition caused by COVID-19 that results in the inability to engage in an individual's usual and customary daily activities for at least 14 days, which does not include any period that the individual is in quarantine to slow the spread of COVID-19. (iii) Death.”

"Premises" is defined as “any real property and any appurtenant building or structure, or a vehicle, that serves a commercial, residential, charitable, cultural, educational, governmental, health care, religious, or other purpose.”

"Public health guidance" means “written guidance related to COVID-19 issued by the Centers for Disease Control and Prevention or the Occupational Safety and Health Administration of the United States Department of Labor, or by the department of health and human services or another agency of this state.”

Michigan H.B. 6031 and H.B. 6101

Notwithstanding any other part of the Michigan Occupational Safety and Health Act (MIOSHA), H.B. 6031 and H.B. 6101 (chaptered as PA 237'20 and PA 239'20) keep an employer from being liable for damages for an employee’s exposure to COVID-19 if the employer was operating in compliance with federal or state statutes or regulations, executive orders, state agency orders, and public health guidance applicable at the time of the exposure. If more than one public health guidance applied to the employer at the time of the exposure, the requirements of this provision are satisfied if the employer operated in compliance with any applicable public health guidance.

The civil immunity provided does not apply if the employer willfully exposed the employee to COVID-19, unless the employee was, at the time of the exposure, working in a health care setting.

“Public health guidance” means “written guidance related to COVID-19 issued by the Centers for Disease Control and Prevention (CDC) or the federal Occupational Safety and Health Administration, or by the Michigan Occupational Safety and Health Administration, the Department of Health and Human Services, the Department of Licensing and Regulatory Affairs, or another agency of this state.”

“Willful” is defined in Section 6 of MIOSHA, for the purpose of criminal prosecutions, as the intent to do an act knowingly and purposely by an individual who, having a free will and choice, either intentionally disregards a requirement of MIOSHA or a rule or standard promulgated under it or is knowingly and purposely indifferent to a requirement of MIOSHA or a rule or standard promulgated under it. An omission or failure to act is willful if it is done knowingly and purposely. Willful does not require a showing of moral turpitude, evil purpose, or criminal intent as long as the individual is shown to have acted, or to have failed to act, knowingly and purposely.

Michigan H.B. 6032

H.B. 6032 (chaptered as PA 238'20) prohibits an employee who tests positive for COVID-19 or who displays the principal symptoms of COVID-19 from reporting to work until all of the following conditions are met:

• If the employee has a fever, 24 hours have passed since the fever 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.

The new law also prohibits an employee who has had close contact with an individual who tests positive for COVID-19 or with an individual displaying the principal symptoms of COVID-19 from reporting to work until one of the following conditions is met: 14 days have passed since the employee last had close contact with the individual; or the individual the employee had close contact with tests negative for COVID-19.

H.B. 6032 prohibits an employer from discharging, disciplining, or otherwise retaliating against an employee who complies with these prohibitions or who opposes an employer’s violation of the bill. This does not apply to an employee who reports to work before the end of the applicable period described above or an employee who fails to be tested for COVID-19 within three days of displaying principal symptoms.

An employer is allowed to discharge or discipline an employee if:

• H.B. 6032 does not prohibit the employee from reporting to work, but the employee does not report to work, and the employee’s failure to report to work is not otherwise protected by law; or
• The employee consents to the discharge or discipline; or
• There is any other lawful basis to discipline or discharge the employee.

An employee aggrieved by a violation of H.B. 6032 can bring a civil action for appropriate injunctive relief or damages, or both, with possible damages of at least $5,000.

"Adverse employment action" is defined to include at least “any of the following: (i) Disciplinary action. (ii) Termination of employment. (iii) A demotion or a failure to provide a promotion. (iv) An involuntary change in a work shift. (v) An involuntary reduction of work hours. (vi) A reduction of employment benefits. (vii) A reduction in salary or wage. (viii) Any other changes in the terms or conditions of employment.”

H.B. 6032 defines "close contact" as “being within approximately 6 feet of an individual for a prolonged period of time.”

"Damages" means “any of the following: (i) Actual injury or loss. (ii) Reasonable attorney fees. (iii) Reasonable court costs.”

"Employee" is defined as “an individual employed by an employer and whose primary workplace is not the individual's residence.”

An "employer" means “a person or a state or local governmental entity that employs 1 or more individuals.”

“Principal symptoms of COVID-19” is defined as “either or both of the following:

• One or more of the following not explained by a known medical or physical condition: Fever; Shortness of breath; 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; Vomiting.

This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.