House OKs COVID-19 liability bills; Whitmer calls them 'solution in search of problem'

Beth LeBlanc
The Detroit News

Legislation approved by the full House Wednesday would protect businesses from lawsuits stemming from clients or employees who contract COVID-19 in the course of business.

The legislation, which would apply retroactively to Jan. 1, 2020, would shield businesses from litigation unless the claimant can show the business “willfully exposed the employee to COVID-19 unless the employee was, at the time of the exposure, working in a health care setting.”

Businesses attempting to operate within COVID-related federal or state laws, executive orders or public health guidance would be immune from lawsuits.

Sign on a business In Ontonagon, Michigan, Thursday, June 25, 2020.

“Our main thought here is that this is not intended to protect bad actors,” said Rep. Graham Filler, the DeWitt Republican who chairs the House Judiciary Committee. “This is to protect businesses from frivolous lawsuits.”

But the legislation appears headed for a veto from Gov. Gretchen Whitmer, whose office last week said existing law already protects people "taking reasonable care to protect workers and customers."

"Instead of passing this legislation, which is a solution in search of a problem, the Legislature should be focused on helping our businesses implement health and safety standards to keep their employees and customers safe," Whitmer said. 

Filler noted the package was bipartisan and included "collaborative" hearings in committee.

"I believe there will be ongoing conversations with the governor as we all work to find the best way to create a good business climate in Michigan," he said. 

The package also would stop employers from retaliating against an employee for not reporting to work because of COVID-19-related circumstances, such as virus symptoms, a positive virus test or close contact with an infected person. The employee would not be allowed to return to work until he or she tests negative or three days have passed since the employee was last symptomatic.

The bill would require people who have close contact with an infected individual to stay home until 14 days have passed from that contact. The conditions would not apply to first responders, health care providers or someone working in child protective services, a child care facility or correctional facility. 

Businesses that designed, manufactured or sold COVID-19 products, such as personal protective equipment, medical devices, tests or medications, would be immune under the legislation from product liability, unless there was clear evidence the business knew the product was defective.

Each of the bills passed out of committee last week in 8-3 votes. Two lawmakers abstained from voting. 

The Negligence Law Section of the State Bar of Michigan criticized the bills and the “unreasonably difficult” burden they placed on employees or customers seeking redress for negligence related to COVID-19.

“They would lower the duty of the employers and business owners to protect their employees and customers from exposure to a disease that causes illness and death,” the section said this summer. 

The package of bills includes one that would provide immunity for health are providers and facilities — a second stab at such a bill after a first round of health care liability bills was vetoed by Whitmer. 

The bill would not affect or supersede the Worker’s Disability Compensation Act. 

Whitmer vetoed a health care liability bill last month because she said it went beyond the immunity she initially gave to the health care industry through executive order and instead gave providers “broad immunity” during an emergency “regardless of whether the circumstances demand this extreme measure.”

The new health care liability essentially “codified the governor’s executive order,” Filler said. “The last one went a little bit further than that and it had a longer period of liability protections.”

Whitmer’s executive orders provided immunity for health care providers between March 20 and July 13, while the new bill provides those protections between March 9 and July 15. The bill, which provides exemptions to immunity for gross negligence and willful misconduct, is supported by the Michigan Health & Hospital Association. 

“Michigan’s health care providers and facilities faced an unprecedented challenge due to the COVID-19 pandemic,” the association said in a letter of support earlier this month. “Best practices continually changed and difficult decisions were constantly made with no playbook to rely on.”

The Michigan Association for Justice, a group of about 1,400 trial lawyers, said the bill is largely redundant and serves to protect “bad nursing homes.” Assurances that exemptions existed for gross negligence or misconduct set the bar so high so as to be meaningless, President Donna MacKenzie said in a letter earlier this month. 

“The reality is that this standard is nearly impossible to meet under current Michigan law,” MacKenzie said.