State laws enacted early in the COVID-19 pandemic that shielded employers from liability — and required employees to stay home if they got sick — end in a year.
Gov. Gretchen Whitmer on July 1 signed three bills into law that first roll back protections for both employers and employees and then repeal the laws outright on July 1, 2023.
In passing the three bills, state lawmakers are essentially returning the state laws to a pre-pandemic period.
“There’s a recognition on the part of the Legislature and the governor’s office that it’s two-plus years into the COVID pandemic, we have many people who have not only gotten COVID but recovered, and I think — to put it very bluntly — we can’t live like this forever. We have to move forward,” said Robert Dubault, a partner in the employment and labor practice group at law firm Warner Norcross + Judd LLP’s Muskegon office.
One of the laws granted employers immunity from liability lawsuits if an employee was exposed to COVID-19 at work, provided they followed state and federal regulations. Public Act 237 no longer provides that immunity for exposures that occur after July 1, 2022. The law is then repealed in a year.
Another bill eliminated liability protections for individuals and organizations for any exposure claim that occurs after July 1, 2022, and then repeals Public Act 267 on July 1, 2023.
“Employees no longer have the option to sue their employer if they are disciplined for, say, isolating after a close contact or something like that. But on the other hand, employers no longer have immunity from lawsuits by employees who believe they contracted COVID in the workplace and feel they can show that,” said Anne Steen, an associate in the employer and labor practice group at Warner’s Grand Rapids office.
A third bill amended Public Acts 238 and 239 that prohibited employers from disciplining employees who failed to report to work claiming they were sick from COVID. The law also required employees to stay home if they tested positive for COVID-19, had symptoms or were exposed to the virus.
The recently enacted bills rolled back the requirement this month and repeal both PA 238 and 239 on July 1, 2023.
Despite the changes in the laws, “employers aren’t totally off the hook and employees aren’t totally without protections,” Steen said.
Companies are still required under existing state and federal laws to provide a safe workplace that is free from “recognized hazards,” she said.
“They can’t ignore their obligations under other statutes,” Steen said.
While some ambiguity remains over the changes, Warner advises clients to consider their policies to assure they still minimize the risk for COVID-19 exposure at work. That could include, for example, continued flexibility rather than returning to attendance policies that they may have had in place prior to the pandemic.
“This is a practical matter. I’ve had several clients reach out and say, ‘So what does this mean? Does this mean we can start assessing attendance points if people call in for COVID-related reasons? Or maybe for the last two years we’ve had an attendance policy, but we carved out COVID. Can we now go back to our old attendance policy?” Dubault said. “My advice has been, ‘Well, technically, yeah, you probably can do that and there’s not going to be liability under those particular laws (from 2020), but do you really want to do that? Do you really want people coming to work sick with COVID because then everybody can get sick, and how are you going to run your business then if everybody’s sick?”
Clients generally have said that “it probably makes sense to continue to operate as we have over the last couple of years, at least for now,” Dubault said.
That view reflects how the pandemic has forced employers to rethink workplace attendance policies, at least for how they handle employee illness.
“It used to be: ‘We don’t really care. We want you here.’ We all know that a lot of employees probably come to work when they don’t feel well,” Dubault said. “I think this has sort of moved the needle, if you will, or shifted the paradigm a little bit and caused everybody to think about that. It’s certainly going to be something that each individual business is going to have to think about and how they want to deal with those things.”
Employers during the pandemic generally have followed the thinking to have people stay home if they were sick. Where the situation was prone to abuse was employees who repeatedly claimed to have close contact with somebody who had COVID, Dubault said.