Governor Whitmer signed a series of bills (House Bills 6030, 6031, and 6032) into law addressing liability for the spread of COVID-19. HBs 6030 and 6031 provide additional incentives for employers to comply with COVID-19 regulations regarding employees, whereas HB 6032 provides a specific list of COVID-19 systems and prohibits employers from discriminating against employees who cannot come to work for a specific COVID-related reason.
House Bills 6030 and 6031
HB 6030 declares that persons or businesses who have followed the rules, orders, statutes, and regulations that are/were in effect at the time of infection will not be held liable if someone contracts COVID.
Additionally, HB 6031 amends Michigan’s Occupational Safety and Health Act to state that employers will not be held liable by MIOSHA for an employee’s exposure to COVID-19 provided that they have followed the aforementioned requirements. Notably, HB 6031 and HB 6030 do not require employers to have complied with all agency “guidance” to obtain the benefits of those bills, which means you are not legally required to comply with all Center for Disease Control and Prevention (“CDC”) guidance to be limited from liability under these laws. Furthermore, the bills state that an “isolated, de minimis deviation” from the requirements will not preclude immunity. As such, both bills incentivize employers to substantially comply with COVID-19 guidance by reducing their legal liability if they do so.
House Bill 6032
HB 6032 requires employers to prohibit employees from coming into work for specific COVID-related reasons. If an employee exhibits shortness of breath, fever, or an uncontrolled cough that is “not explained by a known medical or physical condition,” then the employee must remain at home. Likewise, the employee cannot return to work if he or she exhibits two or more of the following unexplained symptoms: abdominal pain, diarrhea, loss of taste or smell, muscle aches, severe headache, sore throat, or vomiting.
The bill also prohibits discrimination against employees for having to stay home under the circumstances described above. Notably, the definitions in HB 6032 reference a more limited list of COVID symptoms than the CDC, does not refer employers to the CDC’s website for guidance, and qualifies the symptoms as “not explained by a known medical or physical condition.”
Monitoring Close Contact
The definition of “close contact” in HB 6032 is “being within approximately 6 feet of an individual for 15 minutes or longer,” but it does not specify whether the fifteen minutes of exposure are calculated consecutively or cumulatively. Additionally, HB 6032 does not reference the CDC’s guidelines for close contact, so there is ambiguity about how close contact should be defined.
The CDC uses the same six-foot-rule as HB 6032, but, last week, the CDC changed its guidance. Previously, the CDC had stated that people were only in “close contact” if they were within 6 feet for 15 consecutive minutes. The CDC now advises that people are in “close contact” if they are within 6 feet of a symptomatic/infected person for a total of 15 or more minutes within a 24-hour timespan. In other words, the CDC has shifted from calculating close contact on a consecutive minutes of exposure basis to a cumulative one.