Michigan Workers' Comp Defense Blog

On November 30, 2021, Governor Gretchen Whitmer signed into law House Bill 4171, which expanded eligibility under the First Responder Presumed Coverage Fund.

We have written extensively about changes to Michigan workers’ compensation law in response to the COVID-19 pandemic. These changes came in the form of several executive orders issued by Governor Whitmer and various emergency rules promulgated by the Michigan Department of Labor and Economic Opportunity (“LEO”). LEO promulgated its first Emergency Rules on March 30, 2020. Those Rules established a rebuttable presumption that a “first response employee” who is diagnosed with COVID-19 sustained a compensable work-related injury. Thereafter, the Governor signed various executive orders having similar effect.

Unfortunately, the COVID-19 pandemic continues to rage worldwide. At the time of this article being published, there have been nearly 28,000,000 cases and over 485,000 deaths in the United States. Over 600,000 cases and almost 16,000 deaths have occurred in Michigan, alone.

In response to the pandemic, many jurisdictions have implemented various Emergency Rules and Orders to all but ensure compensability for certain delineated essential, frontline and first response employees who contract COVID-19. Other states, like Illinois, have enacted actual legislation that similarly relaxes the burden of proving compensability for some of these favored workers. We have written about these Rules, Orders, and legislation on several occasions over the course of the last year. You can read our most recent article on this topic here.

The federal government enacted the Families First Coronavirus Response Act (“FFCRA”) on March 18, 2020. The FFCRA was intended to provide support to workers who were unable to work while complying with government-mandated quarantines following exposure to COVID-19 or while taking care of someone else in quarantine. The law required employers with fewer than 500 employees (“covered employers”) to pay certain employees Emergency Paid Sick Leave, Emergency Family Medical Leave and/or Expanded Emergency Family and Medical Leave (together, “FFCRA Leave”) as more fully described below.

On December 17, 2020, in an unpublished per curium decision, the Michigan Court of Appeals reversed an award of workers' compensation survivor’s benefits that had been given to a widow whose spouse had been killed while he was traveling to a class the employer had encouraged him to attend and for which the employer had paid pursuant to its employee education assistance and tuition reimbursement program. See Lewis v LexaMar Corp, Mich App __ (2020). 

On October 2, 2020, the Michigan Supreme Court ruled that the law upon which Governor Gretchen Whitmer relied to extend the State of Emergency after April 30, 2020 is unconstitutional. The Supreme Court's ruling, which we discuss here, invalidates the Governor's Executive Orders issued during the extended State of Emergency. Executive Order 2020-128, issued on June 18, 2020, established a rebuttable presumption that a "COVID-19 Response Employee" (a term which was not well-defined within the Executive Order) has sustained a compensable injury when he or she is diagnosed with COVID-19. Executive Order 2020-128 contained language quite similar to the March 30, 2020 Emergency Rule issued by the Department of Labor and Economic Opportunity ("LEO").

On October 2, 2020, the Michigan Supreme Court issued an opinion regarding whether Governor Gretchen Whitmer had the authority to declare and extend a State of Emergency and issue Executive Orders related to the COVID-19 pandemic. In a lengthy opinion, the Court held that the Governor did not have proper authority because the law upon which she relied is unconstitutional. 

The Context

We remain in the midst of a worldwide pandemic. The federal government and all 50 states have declared states of emergency. In an effort to mitigate the rapid spread of the coronavirus, Governor Gretchen Whitmer issued a “Stay Home, Stay Safe” Executive Order on March 24, 2020 (EO 2020-21). That Order was rescinded and superseded by another expanded stay-at-home Order, issued on April 8, 2020. (See EO 2020-42). Earlier this morning, the governor issued her most recent Stay Home, Stay Safe Order, extending the stay-at-home decree until May 15, 2020. (See EO 2020-59).

As you know, Governor Gretchen Whitmer recently declared a State of Emergency on March 10, 2020 in response to the COVID-19 pandemic.  The President declared a National Emergency on March 13, 2020. On March 18, 2020, the Director of the Michigan Department of Labor and Economic Opportunity (“Director”), with the concurrence of the Governor, promulgated a first set of Emergency Rules pertaining to “first response employees.”

As you know, Governor Gretchen Whitmer recently declared a State of Emergency in response to the COVID-19 pandemic. As part of that response, Governor Whitmer, in conjunction with the Director of the Department of Labor and Economic Opportunity, Jeff Donofrio, promulgated Emergency Rules (“Rules”) regarding workers’ compensation coverage for certain employees working in the health field, including first responders. We discussed the Rules in an earlier article, and we prepared this article in response to several questions we have received from clients in order to clarify some of the ambiguities in the Rules.

The Current Context

The novel Coronavirus (“COVID-19”), now classified as a full blown pandemic by the World Health Organization, is projected to continue spreading across Michigan and the United States over the next few months. In less than a month, the global number of confirmed COVID-19 cases has tripled from about 75,000 cases on February 20, 2020, to more than a quarter million cases as of Friday, March 20. The Washington Examiner reports that the death toll surpassed 10,000 last week. The World Health Organization has warned of the likelihood of continued “exponential growth.” For more on the impact of these emergency rules, see here.