Michigan Rolls Back Its COVID-19 Employment Rights Act
On Monday, July 11, 2022, Governor Whitmer signed into law a package of bills that amend and repeal three of Michigan’s COVID-era laws, including an amendment and repeal of Michigan’s COVID-19 Employment Rights Act.
The COVID-19 Employment Rights Act, also known as Public Act 238 of 2020, prohibited employees from reporting to work after (1) testing positive for COVID-19; (2) experiencing the principal symptoms of COVID-19; or (3) being identified as a close contact of someone who has tested positive for COVID-19 (under certain circumstances), until the employee had fulfilled the appropriate isolation or quarantine period. Under the new law, no claim or cause of action under the COVID-19 Employment Rights Act can accrue after July 1, 2022 and the COVID-19 Employment Rights Act is repealed in its entirety, effective July 1, 2023.
Here is what it means:
- Until July 1, 2023, employees can sue their employer for any event that was protected under the COVID-19 Employment Rights Act that occurred before July 1, 2022. For example, if an employee was denied leave after testing positive for COVID-19 on June 10, 2022, that employee could sue his or her employer under the COVID-19 Employment Rights Act until it is repealed.
- Employees cannot use the law as a basis to sue their employers for employment events that occurred after July 1, 2022.
Conversely, it doesn’t mean that employers are off the hook.
- Until the COVID-19 Employment Rights Act is repealed in July 2023, the law still prohibits employees from reporting to work if they meet any of the three conditions listed above- it just doesn’t have any enforcement “teeth” if employers retaliate against them. However, an employer who fails to follow the law could subject itself to a claim for wrongful discharge in violation of public policy.
- Additionally, employees who miss work for certain COVID-19 related reasons may still be entitled to use their accrued paid medical leave or leave under the Family and Medical Leave Act.
- Michigan employers must still abide by their obligation to provide each employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees under the Michigan Occupational Safety and Health Act’s general duty clause.
As a result, employers should still refer to the most updated CDC guidelines related to COVID-19 isolation and quarantine when determining whether an employee should be restricted from entering the workplace.
The bill package also amended and repealed two other COVID-19 era employer and business liability protections under the COVID-19 Response and Reopening Liability Assurance Act and a 2020 amendment to the Michigan Occupational Safety and Health Act. Similar to the changes to the COVID-19 Employment Rights Act, no claim or cause of action under those COVID-19 laws can accrue after July 1, 2022 and both are repealed in their entirety, effective July 1, 2023.
Employers should contact their Miller Johnson attorney to discuss the impact of these changes on their COVID-19 safety measures, including how to respond when an employee communicates his or her own COVID-19 positive test, symptoms, or close contact with a COVID-19 positive individual.