A. Vince Colella
Moss & Colella P.C.
This new year brings hope and optimism for a return to “normal.” For many businesses, this means initiating efforts to bring workers (essential and otherwise) back to the workplace. However, even with an aggressive and strategic distribution plan for the vaccine, employees may be required to return to work while the threat of the virus continues to persist. This poses a unique challenge to employers of balancing the health and safety of their employees with their productivity. Recently, Governor Gretchen Whitmer signed three new pieces of legislation adopting protections for businesses and governmental agencies related to COVID-19 exposures. The COVID-19 Response and Reopening Assurance Act (“RRAA”) [MCL 691.1451, et. seq.] was enacted with the intention to grant immunity from civil liability where an employer demonstrates substantial compliance with federal and state health regulations. Additionally, an amendment to Michigan’s immunity statute purports to eliminate employer liability for minor health and safety violations. The statute reads, in part, “an isolated, de minimus deviation from strict compliance…does not deny a person the immunity…” [MCL 408.1085] These laws have been applied retroactively to any claim or cause of action that accrue after March 1, 2020.
On its face, the statutes appear to immunize employers from tort liability claims arising from the negligent spread of the virus. However, unlike other immunity statutes where the burden of proof is heightened beyond mere negligence to gross, reckless, willful, or deliberately indifferent conduct (the more egregious varieties), the RRAA simply sets forth a ‘negligence per se’ requirement to defeat exposure claims. For example, if an employer ignores state health regulations requiring the wearing of masks, social distancing, temperature checks and/or health screening questionnaires, it could be found negligent and thus, liable for the exposure. Essentially, the health regulations have become the standard of care. Any breach of these regulations constitutes a per se violation establishing a rebuttable presumption of negligence and subjecting the employer to liability for damages. Additionally, unlike the protections afforded under other immunity doctrines, there are no special appellate procedures that make litigation more complicated, expensive and time consuming – – widely known to deter the filing of lawsuits. Absent a greater duty of care and immediate pre-trial access to appellate review, the grant of immunity appears to be in title alone.
Conversely, Michigan lawmakers have adopted more efficacious legislative protections for employees who suffer adverse employment action related to COVID-19 compliance and reporting. According to the law, an employer may not discharge, discipline, or otherwise retaliate against an employee (other than health care professionals and others exempted from the statute) who (a) displays the principal symptoms of COVID-19, does not report to work and later tests negative for the virus, (b) opposes a violation of the [state health and safety regulations], or (c) reports a health violation related to COVID-19. Employers should also be mindful that the mandates under this statute are partially symptom dependent. For example, an employee whose symptoms include a fever may not return to work until 24 hours have passed since the fever has stopped without the use of fever reducing medications and 10 days have passed since the symptoms first appeared. In the case of ‘close contact’ with a person known to have tested positive, the period of quarantine is extended to 14 days. Should an employer take adverse employment action as prohibited by law, the employee may bring a civil action for appropriate injunctive relief or damages, or both, in the circuit court for the county where the alleged violation occurred. Additionally, the statute contains a liquidation clause that allows a court to award money damage in an amount no less than $5,000.00 to a plaintiff who prevails in an action brought under the Act. [MCL 419.407]
Finally, as the year was coming to an end, the Michigan Senate introduced the Pandemic Response Health Care Immunity Act, a bill to provide unfettered impunity from injuries negligently caused by an individual while delivering COVID-19 related services between October 2020 to mid-February 2021. However, Governor Whitmer vetoed the bill, stating that while the frontline health care workers deserve the state’s full support, including hazard pay and a healthy supply of PPE, ‘immunity was no longer appropriate under the circumstances.’ The veto sent a strong message to the Senate that while protecting the employment rights of workers was of paramount importance, eliminating victims’ right to damages suffered as a result of the negligent transmission of the virus would not be tolerated. Consequently, the sum of these recent legislative enactments accomplishes the objectives of protecting workers from the unnecessary exposure to the virus and freeing them from unlawfully being terminated for opposing or reporting risky employer practices while preserving a person’s right to seek damages for injuries caused by the negligent transmission of COVID-19. I applaud these bold humanitarian efforts to protect workers and foster a safe workplace.
This article was first published in the Detroit Legal News on January 7, 2021