Advocacy News – June 16, 2022
Legislation is on the move in Lansing to remove some of the statutory requirements put in place at the start of pandemic, some of which are causing chaos, confusion and problems in workplaces across Michigan.
What’s the Problem?
Under Michigan law today, Michigan employers are subject to the COVID-19 Employment Rights Act, which prohibits employers from taking adverse employment action against an employee who does not report to work if s/he has COVID-19, principal symptoms, or had close contact and needs to isolate or quarantine. The law was passed in October of 2020 alongside COVID-19 liability protections for businesses, giving employers an affirmative defense if they can prove they are following “all” local, state and federal guidelines, including those issued by the Centers for Disease Control and Prevention (CDC), local public health departments, the Michigan Occupational Safety and Health Administration (MIOSHA), and the Michigan Department of Health and Human Services (MDHHS).
Since the COVID-19 Employment Rights Act was last amended in December 2020, the CDC has updated their guidance as it relates to isolation and quarantine protocols, but unfortunately, the law does not allow employers to fully recognize all of these changes (e.g., the law does not speak to differences in quarantine protocols based on vaccination status and does not fully align with the CDC’s current list of principal symptoms).
Because the law is not in full alignment with CDC guidance, this puts employers between a rock and a hard place: follow the latest CDC guidelines and risk being sued or follow the more stringent requirements of the COVID-19 Employment Rights Act and risk having employees out of the workplace unnecessarily—and possibly without pay if no paid time off (PTO) is available.
What’s the Proposed Solution?
Given the confusion, complexities, contradictions and fact that Michigan has not been a COVID-19 state of emergency for over a year, the Michigan Chamber supports legislation (House Bill 5244) to return decision making powers about COVID protocols back to employers by fully repealing the COVID-19 Employment Rights Act.
However, in the era of divided government, passage of HB 5244 comes with a trade-off. To ensure the Governor’s signature, we also need to support legislation repealing the COVID-19 liability protections for businesses, including House Bills 6215 and 6128. Together, the bills would repeal most of the COVID-related statutory protections and regulations the Michigan Legislature adopted going back to 2020.
While on its face repealing liability protections for business would be of concern to the business community, the data shows the bulk of the litigation hasn’t been focused on personal injury; it’s been focused on other disputes. This is true nationally and in Michigan—and regardless of whether a state has a liability law on the books or not. This national tracker – www.huntonak.com/en/covid-19-tracker.html – shows of the 282 claims filed in Michigan, 103 were in the area of “labor and employment” — nearly half.
Going back to when this bill package was passed, there was some discussion about adding a sunset date (kind of like an expiration date) to the legislative package. However, that sunset was never added. You could think of the bills before you as retroactively adding the sunset that probably should have been added in 2020.
What’s the Status of this Legislation?
House Bills 5244, 6128 and 6215 passed the Michigan House by large bipartisan margins on Wednesday and were sent to the Senate for their consideration.
We will keep you in the loop on this issue via MI Chamber News. Please contact Wendy Block with questions at wblock@michamber.com.