On July 11, 2022, Governor Gretchen Whitmer signed bills amending Michigan’s COVID-19 Employment Rights Act, Act 238 of 2020 (“Act 238”). Under Act 238, Michigan employers are prohibited from discharging, disciplining, or otherwise retaliating against an employee who has to quarantine or isolate pursuant to Centers for Disease Control and Prevention (“CDC”) guidelines after testing positive for COVID-19, displaying the principal symptoms of COVID-19, or having close contact with an individual who tests positive for COVID-19. Act 238 can be viewed here: http://legislature.mi.gov/doc.aspx?mcl-Act-238-of-2020.
Prior to July 11, 2022, Act 238 had no end date, meaning that it would remain in effect indefinitely. The July 11th amendments state that an employee cannot sue an employer who terminates, disciplines, or retaliates against them for not reporting for work because of COVID-19, if that action took place after July 1, 2022. In addition, Act 238 will be repealed effective July 1, 2023. This change added a statute of limitations, so individuals may only bring claims under Act 238 (for actions that occurred on or before July 1, 2022) until July 1, 2023.
Employers should be aware that these changes do not mean that they can freely terminate or discipline employees who need to quarantine or isolate due to COVID-19. Because Act 238 remains in effect until July 1, 2023, an employee who is terminated after July 1, 2022 for COVID-19 leave reasons could potentially bring a claim against the employer for wrongful discharge in violation of public policy. Employees who miss work for COVID-19 related reasons may also be entitled to use their accrued paid sick leave, leave under the Family and Medical Leave Act, or take leave under applicable disability statutes.
Additionally, Michigan employers have an obligation to provide a place of employment that is free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees under the Michigan Occupational Safety and Health Act’s (MIOSHA’s) general duty clause. Employers should continue to follow applicable agency COVID-19 workplace guidelines. Failure to do so could lead to a claim that the employer violated MIOSHA’s general duty clause.
Mika Meyers continues to monitor developments surrounding the status of Act 238 and agency handling of complaints regarding COVID-19 workplace protocols. Employers should contact Nikole Canute, Scott Dwyer, Nate Wolf, Dominic Clolinger, or Kathryn Zoller as soon as practicable if they have any questions.