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Published in Economic Development
Gov. Gretchen Whitmer Gov. Gretchen Whitmer COURTESY PHOTO

Whitmer: Existing law protects employers from COVID-19 liability

BY Thursday, September 17, 2020 04:47pm

Gov. Gretchen Whitmer says existing state law provides employers the protection needed should they get sued by an employee or customer alleging they contracted COVID-19 while at work or at a business.

Asked Thursday about liability bills under consideration by state lawmakers, Whitmer said existing state law says “anyone taking reasonable care to protect workers and customers cannot be held liable in court.”

“I do think that the standards that are in law make a lot of sense,” Whitmer said Thursday during a virtual COVID-19 briefing hosted by the Small Business Association of Michigan.

“I know that most businesses are doing the right thing to protect their employees and their customers because obviously they have a really important incentive to keep everyone safe,” she said. “I think that that is a standard that most businesses are living up to and should give business owners some comfort that if they’re taking reasonable care to do what they need to do to keep their employees and their customers safe, they’re going to be in good shape.”

Whitmer added that she is “following the debate closely” in the Legislature.

The House Judiciary Committee earlier this week began reviewing substitute language in a package of bills introduced this summer that would strengthen liability protections for businesses navigating the COVID-19 pandemic.

One bill — HB 6030, sponsored by state Rep. Thomas Albert, R-Lowell — would “set minimum requirements and establish standards for certain liability claims alleging COVID-19 exposure and certain product liability claims” retroactive to Jan, 1, 2020, according to a House Fiscal Agency analysis. It would provide liability protection for a company that is in “substantial compliance with or reasonably consistent” with federal or state laws, regulations, executive orders, or public health guidance.

The bill would protect business owners from civil lawsuits over a COVID-19 exposure “unless it was shown by clear and convincing evidence that injuries were caused by a reckless disregard of a substantial and unnecessary risk that an individual would be exposed to COVID-19, or unless the person engaged in a deliberate act intended to cause harm,” the analysis states.

Another bill — HB 6031, sponsored by Rep. Tommy Brann, R-Grand Rapids — would add language to the Michigan Occupational Safety and Health Act to provide immunity from civil liability for employers if an employee is exposed to COVID-19 on the job. 

A third bill — HB 6032 sponsored by Rep. Graham Filler, R-Dewitt — that’s part of the legislative package would prohibit an employee from working if they test positive for COVID-19 or show one or more symptoms “until he or she receives a negative COVID-19 test result,” according to a bill analysis. Employees could not work until they did not have symptoms for three days, or it’s been a week after symptoms first appeared or they had a positive test.

Employees who had “close contact” with someone who tested positive for COVID-19 or showed symptoms could not work for 14 days from when they last had close contact with that individual, or the individual tests negative.

The bill also would prevent employers from taking “adverse employment action” against an employee who complies with the requirements.

While state law provides some liability protections for businesses, SBAM President Brian Calley said further immunity is needed from “frivolous” lawsuits. Oftentimes businesses will simply settle a lawsuit to avoid higher costs of fighting it in court, he said.

SBAM wants to see liability protections from COVID-19 exposures better defined than what’s now in state law.

“In a small business, even when you win, you lose,” Calley said. “I’m confident that most small businesses do meet the ‘reasonable’ standard that exists in our law today, but anything that we can do to head off frivolous lawsuits from happening in the first place would be a big benefit for small businesses.”

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