Advocacy News – July 14, 2022
Governor Whitmer has signed bipartisan legislation removing several of the COVID rules and regulations put in place at the height of pandemic, some of which were causing chaos, confusion and problems in workplaces across Michigan.
What’s the problem these bills sought to solve?
In October of 2020, lawmakers passed the COVID-19 Employment Rights Act, which prohibited employers from taking adverse employment action against an employee who did not report to work if s/he has COVID-19, principal symptoms or close contact and needs to isolate or quarantine. The law was passed alongside COVID-19 liability protections for businesses, which gave employers an affirmative defense if they could prove they were 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 did not allow employers to fully recognize all of these changes (e.g., the law did not speak to differences in quarantine protocols based on vaccination status and did not fully align with the CDC’s current list of principal symptoms).
Because the law was not in full alignment with CDC guidance, it created a situation whereby employers had to choose: 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 paid time off (PTO) isn’t available.
What do the bills seek to accomplish?
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 pushed 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 came 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 Together, the bills repealed most of the COVID-related statutory protections and regulations the Michigan Legislature adopted going back to 2020.
Shouldn’t we be working to protect the COVID liability protections?
While repealing liability protections for businesses 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.
When does this all go into effect?
The bills signed by the Governor are Public Acts 138-140 of 2022 are effective immediately, meaning they prohibit new claims and causes of action from being filed after July 1, 2022. However, they preserve existing claims and causes of actions filed prior to the July 1 effective date (i.e., those already making their way through the system). The various laws the bills impact will be fully repealed on July 1, 2023.
Please contact Wendy Block with questions at wblock@michamber.com.