Michigan Legislature Considers New COVID-19 Presumption Bill
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.
After the Michigan Supreme Court’s October 2, 2020 ruling invalidated the Governor’s executive orders, LEO issued a new Emergency Rule continuing the rebuttable presumption through March 20, 2021 – this Rule has since expired.
The Michigan Legislature has attempted to codify the spirit behind the executive orders and emergency rules on a few occasions. In April 2020, the Michigan Senate considered two bills that sought to amend Section 405 of the Michigan Workers’ Disability Compensation Act to provide additional protection for certain workers who become ill after contracting COVID-19. We discussed these bills in an article on May 12, 2020, but neither of those bills became law.
In a new attempt to codify the COVID-19 rebuttable presumption, Michigan State Representative Mike Mueller introduced a similar bill to the Michigan House of Representatives on May 11, 2021. Instead of amending Section 405 of the Act like the prior bills, this new bill – called HB 4822 – would add a section to the Act entitled Section 406. The bill provides a presumption that a “first response employee” who is diagnosed with COVID-19 contracted the virus at work. Like the aforementioned bills, emergency rules, and executive orders, the presumption contained within HB 4822 is rebuttable by a showing of “evidence to the contrary.”
Notably, HB 4822 retroactively applies the rebuttable presumption to workers who were diagnosed with COVID-19 from the date the LEO’s most recent Emergency Rule expired on March 20, 2021 through September 1, 2021.
The Michigan House of Representatives voted to pass HB 4822 on June 30, 2021 by a margin of 104 to 5. The bill was then referred to the Michigan Senate on July 15, 2021 where it is being considered by the Committee on Economic and Small Business Development.
Because of the overwhelming bipartisan support for this bill in the Michigan House of Representatives, we would not be surprised to see this bill be approved by the Senate and sent to Governor Whitmer for her consideration.
We will continue to track the progress of HB 4822 as it makes its way through the legislature.
If you have any questions about how COVID-19 is affecting workers’ compensation, please contact a member of the Foster Swift workers’ compensation group. We are here to help.
Alicia Birach is a member of the Employer Services Practice Group and works out of the firm's Southfield office. She has extensive experience representing insurance carriers, third party administrators and employers against workers' compensation claims. Additionally, she is experienced in counseling employers on labor and employment issues.View All Posts by Author ›
Currently, Brian Goodenough chairs the firm's Employer Services Practice Group where he practices municipal law, zoning and land-use disputes and workers' compensation law. Previously, he served as a member of the firm's Executive Committee and as an officer of the firm.View All Posts by Author ›
Mike devotes his practice to the representation of employers, insurance carriers, and third-party administrators in workers' compensation matters throughout the state. He is the author of several published law review articles on workers' compensation topics, and he is a frequent lecturer on this topic.View All Posts by Author ›