In late October 2020, Michigan enacted several important laws that affect employers’ rights and obligations in dealing with the COVID-19 pandemic in the workplace. I have updated my general COVID-19 guide for employers every month, and I have also written specifically about the COVID tort liability shield. Governor Whitmer also signed the COVID-19 Employment Rights Act (“COVID ERA”) – a significant set of Michigan-specific protections for workers that every employer should make sure they know and follow.

The Act itself is not lengthy or complicated. In general, it does two things: (1) imposes a mandatory quarantine for workers and sets forth specific criteria before they can come back to work; and (2) protects workers from retaliation for quarantining due to COVID. Employers must be familiar with and follow the Act for several reasons. The Act authorizes aggrieved employees to file suit in circuit court and collect a minimum of $5,000 in damages. Also, failure to enforce the quarantine mandate in the Act risks losing the tort liability protections of the COVID-19 Response and Reopening Liability Act. The tort liability shield is only available to those businesses that follow all applicable COVID laws and regulations – so a failure to follow the mandatory quarantine requirements in the COVID ERA may be used against employers in a subsequent lawsuit. For example, if the employer fails to enforce the 10-day quarantine, an employee comes back early and infects a customer, the customer may successfully pursue a negligence tort claim based on the fact that the business ignored the COVID ERA 10-day quarantine period.

Here is a more detailed summary of what the new Act requires:

First, the COVID ERA imposes a mandatory quarantine for workers and prohibits them coming to work if the worker:

• Tests positive for COVID;
• Is experiencing the principal symptoms of COVID; or
• Has had close contact with another person who either tests positive for COVID or displays principal symptoms of COVID.

If the employee either tests positive or is experiencing principal symptoms (regardless of whether a subsequent test comes back negative) may not come back to work until:

• It has been at least 24 hours since the employee’s fever has stopped without the use of fever-reducing medication and the other principal symptoms have improved; and
  • At least 10 days have passed since the onset of the COVID symptoms (even if testing yielded negative results); or
  • At least 10 days have passed since a positive test.

Employees who have had “close contact” with individuals who have tested positive for COVID or are experiencing principal symptoms must quarantine for at least 14 days or until the contact individual receives a medical determination that they did not have COVID at the time of the close contact.

Second, the COVID ERA prohibits employers from discharging, disciplining, or otherwise retaliating against employees who are observing the mandatory quarantine. Note that under the federal FFCRA that has been in effect since March, employees taking time off due to COVID are still entitled to 2 weeks of paid sick leave. This means that you will have to pay an employee observing the mandatory quarantine under the COVID ERA. Remember that a tax credit is available to offset the cost of this paid sick leave. Also, the FFCRA expires on December 31, 2020, and it is unclear if it will be extended or replaced at this time.

In addition, employers may not discharge, discipline, or otherwise retaliate against employees who “oppose a violation of this act [the COVID ERA]” or who report health violations related to COVID-19. In essence, employers may not retaliate against COVID whistleblowers.

To enforce the COVID ERA, the aggrieved employee may file a lawsuit in the circuit court, may seek an injunction and damages, and if the employee prevails, they are entitled to at least $5,000 in damages. This minimum damages provision is intended to encourage employees to enforce their rights under the COVID ERA and to allow them to secure representation, even where the actual damages may be difficult to prove or may be too small to justify legal action.

Finally, the COVID ERA applies retroactively to March 1, 2020, so an employer who illegally retaliated against an employee any time after March 1 can still be sued under this new Act. Note however that workers’ compensation applies to any employee injuries as a result of COVID. Thus, if an employee gets sick and blames their employer, their claim will likely fall under Michigan’s Worker’s Disability Compensation Act.

Questions about compliance with the COVID laws? Confused about the interplay between the various state and federal statutes? Contact attorney Dan Artaev by email or by call/text to set up a consultation.

Disclaimer: This guide is not intended to be and does not constitute legal advice. It is a summary of legislation for informative and promotional purposes only. Do not take any action or refrain from taking any action based on this guide, and always consult with a qualified professional about the circumstances of your particular case. Each set of facts is unique and different circumstances apply to each individual business.

© 2020 Artaev at Law PLLC. All rights reserved.