New state laws phase out employer liability protections enacted during pandemic

State laws enacted at the start of the COVID-19 pandemic that shielded employers from liability — and required employees to stay home if they got sick — end in a year.

Governor Gretchen Whitmer signed three bills into law on July 1 that first nullify protections for employers and employees, then repeal the laws altogether on July 1, 2023.

By passing the three bills, state lawmakers are essentially reverting state laws to a pre-pandemic era.

“There is an acknowledgment from the legislature and the governor’s office that it has been over two years since the COVID pandemic, we have a lot of people who have not only contracted COVID but recovered, and I think – for put it very bluntly – we can’t live like this forever. We have to move forward,” said Robert Dubault, partner in the law firm’s employment and labor law practice group. Warner Norcross + Judd LLPMuskegon’s office.

One of the laws granted employers immunity from liability suits if an employee was exposed to COVID-19 at work, provided they followed state and federal regulations. Public Law 237 no longer provides this immunity for exposures that occur after July 1, 2022. The law is then repealed in one year.

Another bill eliminated liability protections for individuals and organizations for any exposure claims that occur after July 1, 2022, then repeals Public Law 267 on July 1, 2023.

“Employees no longer have the possibility to sue their employer if they are sanctioned for, for example, isolating themselves after close contact or something like that. But on the other hand, employers are no longer at safe from lawsuits by employees who believe they contracted COVID in the workplace and believe they can prove it,” said Anne Steen, associate in the Employers and Labor Practice Group at Warner’s office at Great Rapids.

A third bill amended Public Laws 238 and 239 that prohibited employers from disciplining employees who did not show up for work claiming they were sick with COVID. The law also required employees to stay home if they tested positive for COVID-19, showed symptoms or were exposed to the virus.

Recently enacted bills reversed the requirement this month and repealed PAs 238 and 239 on July 1, 2023.

The protections remain

Despite changes to the laws, “employers aren’t totally off the hook and employees aren’t totally unprotected,” Steen said.

Businesses are still required under existing state and federal laws to provide a safe workplace free from “recognized hazards,” she said.

“They can’t ignore their obligations under other laws,” Steen said.

While some ambiguity remains over the changes, Warner advises clients to consider their policies to ensure they are still minimizing the risk of exposure to COVID-19 at work. This could include, for example, continued flexibility rather than reverting to attendance policies they may have had in place before the pandemic.

“It’s a practical question. I’ve had several clients contact me and say, ‘So what does this mean? Does this mean we can start assessing PoPs if people are calling for COVID-related reasons? Or maybe for two years we had an attendance policy, but we eliminated COVID. Can we now revert to our old attendance policy? said Dubault. “My advice was, ‘Well, technically yes, you probably can and there will be no liability under those particular laws (as of 2020), but do you really want to do that? Do you really want people to come to work sick with COVID because then anyone can get sick, and how are you going to run your business then if everyone is sick? »

Customers generally said that “it probably makes sense to continue operating as we have for the past two years, at least for now,” Dubault said.

This view reflects how the pandemic has forced employers to rethink workplace attendance policies, at least for how they handle employee illness.

“Before, it was: ‘We don’t care. We want you here. We all know that a lot of employees probably come to work when they’re not feeling well,” Dubault said. “I think it kind of moved the needle, if you will, or shifted the paradigm a bit and got everyone thinking about it. This is definitely going to be something every business needs to think about and how they want to handle these things. »

Employers during the pandemic generally followed the idea of ​​having people stay home if they were sick. Where the situation was prone to abuse was employees who repeatedly claimed to have close contact with someone who had COVID, Dubault said.

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