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Tips for Michigan Employers Navigating COVID-19 Legislation Post-Supreme Court Ruling Against Governor Whitmer

October 15, 2020

UPDATE: Gov. Whitmer signed the employer liability protection-related bills on October 22 and the extension of unemployment benefits on October 20.

Following the Michigan Supreme Court’s ruling on October 2, 2020, Michigan businesses faced uncertainty surrounding the effectiveness of the Governor’s Executive Orders and limitations on their ability to operate normally, their present responsibilities to protect workers during the pandemic, and whether state agencies, the Legislature, or counties would be responsible for enacting new COVID-19 rules. The following article provides Michigan businesses with recent updates on new COVID-19 legislation and agency directives, while providing clarity on the question of the effectiveness of Executive Orders enacted after April 30, 2020.

Michigan Passes New COVID-19 Legislation

On October 14, 2020, the Michigan Legislature approved more than a dozen bills related to COVID-19. After the Michigan Supreme Court’s (the “MSC”) ruling against the Governor on October 2, 2020, the Governor and the Legislature have been engaged in negotiations. The Governor sought to reintroduce many of the policies she enacted through Executive Orders while the Legislature wanted to modify those policies and enact new laws to protect businesses. The two groups have now found a common ground, and the packet of bills includes coronavirus liability protections to businesses, extended unemployment benefits, and other COVID-19 policies, such as permission for electronic public meetings and electronic signatures during the pandemic.

Employer Liability Protections

Most notable for businesses, the packet of bills passed late on October 14 includes several bills providing employers with immunity from COVID-19 related claims that workers may bring against their employers. The employer liability bills provide for the following:

  • Michigan House Bill 6030: Under this bill, businesses who act in compliance with federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 which had legal effect at the time of the conduct that allegedly caused harm, are immune from liability for a COVID-19 claim. Note that the immunity is not limited to claims brought by employees. Therefore, if businesses were in compliance with all legal COVID-19 guidance, then they are protected from claims that could be brought by employees, customers, vendors, suppliers, and any other person who entered the business after March 1, 2020. In addition, the act provides that a de minimis deviation from strict compliance does not deny a business from immunity. This provision applies retroactively to any claim or cause of action that accrues after March 1, 2020.
  • Michigan House Bill 6031: Similar to HB 6030, this bill amends the Michigan Occupational Safety and Health Act to clarify that an employer is not liable under the Act for an employee’s exposure to COVID-19 if the employer was operating in compliance with all federal, state, and local statutes and regulations, executive orders, and agency orders related to COVID-19 that had legal effect at the time of the exposure. The de minimis deviation rule described above also applies to this bill. This amendment applies retroactively to any claim or cause of action that accrues after March 1, 2020.
  • Michigan House Bill 6032: This bill prohibits employees from reporting to work if they: (1) test positive for COVID-19, (2) display the principal symptoms of COVID-19, or (3) come into close contact with an individual who tests positive for COVID-19, or with an individual who displays the principal symptoms of COVID-19. The bill also explains when an employee who falls into one of the above categories may return to work. Significantly, the bill also prohibits employers from disciplining, discharging or retaliating against an employee who: (1) does not report to work for the reasons listed above, (2) opposes a violation of the act, or (3) reports health violations related to COVID-19. The prohibition against discipline or retaliation does not apply to a situation where an employee, after displaying the principal symptoms of COVID-19, fails to make reasonable efforts to schedule a COVID-19 test within three (3) days after receiving a request from their employer to get tested.

Note that this bill also provides employees with a civil cause of action if their employer violates this act. Moreover, employers are not shielded from liability under HB 6030. Therefore, employers should carefully consider whether they are permitted to discipline or discharge any employee who lawfully remains home for COVID-19 related reasons permitted under this bill and modify their policies to conform to the requirements of this bill.

Expanded Unemployment Provisions

The packet of bills also includes a bill that adopts a majority of Executive Order 2020-76, which previously provided workers with temporary expansion in unemployment eligibility. The new bill on expanded unemployment benefits provides for the following:

  • Michigan Senate Bill 886: This bill amends the Michigan Employment Security Act to: (1) extend the maximum unemployment benefit period from 20 weeks to 26 weeks, (2) require benefits to be charged to the non-chargeable account if the worker qualifies for benefits for COVID-19 related reasons, (3) allow employers to use the work-share program even if not normally eligible; and (4) allow workers to receive benefits while taking time off work for a COVID-19-related cause. This bill does notmention waiving the “actively searching for work requirement,” which suggests that claimants will need to prove they are looking for a job to get paid. Currently, the expanded unemployment provisions are set to remain in effect through December 31, 2020.

Michigan Supreme Court’s Final Rulings

On October 12, 2020, the MSC issued an order (the “New Order”) in response to Governor Whitmer’s motion to stay the precedential effect of the MSC’s prior order, dated October 2, 2020 (the “Former Order”). The Former Order ruled that all of Governor Whitmer’s COVID-19 related Executive Orders (issued after April 30) lacked any basis under Michigan law. The New Order makes it clear that the MSC’s Former Order took effect immediately on October 2, 2020. Specifically, the New Order denies the Governor’s argument to stay the precedential effect of the Former Order, by stating the Former Order was issued in response to certified questions of the federal district court, and as such, the MSC’s task was to simply respond to those questions. Once the MSC responded to the certified questions, as it did by issuing the Former Order, the contents of that order became effective immediately.

MDHHS October 9 Emergency Order

Although the recent MSC ruling invalidated certain Executive Orders, the Michigan Department of Health and Human Services (MDHHS) has issued similar rules under the Michigan Public Health Code—a different statute than the law that was declared unconstitutional earlier this month. First enacted by the Michigan Legislature after the Spanish Flu of 1918, the Michigan Public Health Code gives the Director of MDHHS special powers during a pandemic.

Using this authority, MDHHS issued a new Epidemic Order on October 9, 2020. This Epidemic Order re-packages many of the requirements from the recently invalidated Executive Orders. These rules include:

  • Face coverings must be worn over the nose and mouth in gatherings of two or more people, including stores, offices, schools, and events. Businesses may not admit people without masks, with few exceptions.
  • Limits on residential gatherings: Indoor gatherings of up to 10 persons and outdoor gatherings of up to 100 persons at a residence are permitted, and face coverings are strongly recommended but not required.
  • Capacity limits for non-residential indoor and outdoor gatherings.
  • Limited capacity for restaurants and bars. Although there are no longer bar closures, the bars may only serve alcohol to patrons who are seated at tables.
  • Organized sports must require masks (except for swimming) and have gathering limits.
  • Employment protections for employees who are in isolation or quarantine and cannot go to work.

Note, however, that not all workplace rules contained in the Governor’s prior Executive Orders have been re-stated in the current MDHHS Epidemic Orders. The Order is effective immediately and remains in effect through October 30, 2020.

MIOSHA Emergency Rules

On October 14, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) within the Michigan Department of Labor and Economic Opportunity (LEO) promulgated rules to clarify the safety requirements employers must follow to protect their employees from COVID-19 (the “Emergency Rules”). LEO cited the Michigan Occupational Safety and Health Act and several Executive Reorganization Orders in support of its authority to take such action. The rules are set to take effect “upon filing with the secretary of state” and will remain in effect for 6 months following the effective date. The Emergency Rules apply to all employers covered by the Michigan Occupational Safety and Health Act.

The Emergency Rules largely adopt the employer requirements of Executive Order 2020-184 “Safeguards to protect Michigan’s workers from COVID-19.” Note, the Emergency Rules also implement some, but not all, of the industry specific requirements found in Executive Order 2020-184 for the following industries: construction; manufacturing; retail, libraries, museums; restaurants and bars; health care; in-home services; personal-care services; public accommodations; sports and exercise facilities; meat and poultry processing; and casinos. Employers should coordinate these Emergency Rules with the requirements issued by MDHHS.

Please contact any member of the Varnum team for assistance in understanding how these updates may affect your workplace.

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