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Michigan Legislators Propose Amendment to Workers’ Compensation Law to Benefit Certain COVID-19 Positive Employees

Face MasksAs you will recall, the Director of the Michigan Department of Labor and Economic Opportunity promulgated Emergency Rules (“Rules”) on March 30, 2020 in response to the COVID-19 pandemic. As we discussed in a previous blog post, the Rules establish a rebuttable presumption of personal injury for “first response employees” who are diagnosed with COVID-19. Now, the Michigan legislature is getting involved in the issue.

On April 30, 2020, eleven Michigan State Senators introduced Senate Bill No. 906 to the Committee on Government Operations. That same day, one Michigan State Representative introduced House Bill No. 5758.  Both bills seek to amend Section 405 of the Michigan Workers’ Disability Compensation Act (MCL 418.405) to provide additional protection for certain workers who become ill after contracting COVID-19. While there are significant differences between the two bills, both provide that certain employees are presumed to have sustained a personal injury that arises out of and in the course of their employment if they contract COVID-19 and become ill. Also, both bills create an opportunity for the employer to rebut the presumption with evidence to the contrary.

As it is currently written, MCL 418.405 provides that firefighters and various law enforcement officers with respiratory diseases or heart disease have the benefit of a rebuttable presumption that their condition is a work-related personal injury. As noted, this provision relaxes the burden of proof only for a special class of employees. Any other type of employee has the burden to prove that his respiratory disease or heart disease arose out of and occurred in the course of employment.

The Two Bills: A Comparison.

Senate Bill No. 906 would extend the rebuttable presumption given to firefighters and various law enforcement officers to “emergency first responders” who become ill after contracting COVID-19 during a State of Emergency declared by the Governor. The bill defines “emergency first responders” as the following:

  • Full-time, part-time, or volunteer firefighters or law enforcement officers;
  • State and local correctional officers;
  • Physicians;
  • Respiratory therapists;
  • Emergency medical services personnel, including medical first responders, emergency medical technicians, emergency medical technician specialists, paramedics, and emergency medical services instructor-coordinator;
  • Licensed or registered nurses.

House Bill No. 5758 would further extend the rebuttable presumption to “essential employees” who become ill from “exposure to an infectious disease” during a State of Emergency declared by the Governor. This bill defines an “essential employee” as:

  • An individual who is required to work during a state declared emergency because he or she is considered necessary to sustain or protect life or to conduct minimum operations during a time that the state has ordered the closure of all businesses that are considered nonessential.

There are two conspicuous differences between the two bills. First, the House bill’s definition of “essential employee” includes types of workers other than those covered by the Senate bill’s definition of “emergency first responders.” For example, “essential employees” include workers who clean tank trucks that carry chemicals, IT staff and cybersecurity engineers for electricity companies, and restaurant carry-out and food delivery employees. A list of all those jobs deemed to be “essential” can be found on the Michigan Department of Attorney General webpage.

Second, the House bill provides a presumption to “essential employees” who become ill from an “infectious disease” while the Senate’s bill is strictly limited to those defined workers who contract COVID-19.  Obviously, the definition of “infectious disease” is much more comprehensive than just COVID-19.

Converting the Emergency Rules to Statutory Law?

In essence, these bills appear to be an attempt by legislators to convert the logic and intent behind the Department of Labor and Economic Opportunity’s Emergency Rules to statutory law. The catalyst for this proposed Michigan legislation may be the result of what recently transpired in Illinois.

On April 16, 2020, the Illinois Workers’ Compensation Commission issued emergency rules (“Illinois Rules”), similar to the Emergency Rules promulgated by the Director of the Michigan Department of Labor and Opportunity on March 30, 2020. The Illinois Rules provide a rebuttable presumption that certain essential workers diagnosed with COVID-19 contracted the virus at work. The Illinois Manufacturers’ Association and the Illinois Retail Merchants’ Association filed a lawsuit alleging that the Illinois Commission’s Rules were an overreach and in violation of their statutory rule-making power. The presiding judge in Sangamon County, Illinois issued a temporary restraining order blocking the Rules. Thereafter, on April 27, 2020, the Commission voted to repeal the Rules, effectively ending the litigation. The Illinois legislature is now considering enacting an amendment to the Illinois workers’ compensation statute to provide a statutory rebuttable presumption.

The Michigan Department of Labor and Economic Opportunity’s Emergency Rules may be similarly suspect in validity. It is arguable that the Director of the Agency overstepped his statutory rulemaking authority in promulgating the Rules (see MCL 418.205 for a delineation of the Director’s rule-making powers). It is possible that this concern is part of the motivation driving the legislators who proposed House Bill No. 5758 and Senate Bill No. 906.

We will continue to track the progress of these bills as they make their way through the legislative committees. If you have any questions about how COVID-19 is affecting the workers’ compensation arena, please contact a member of the Foster Swift workers’ compensation group. We are here to help:

Alicia Birach...248.785.4172...abirach@fosterswift.com
Mike Cassar...517.371.8110...mcassar@fosterswift.com
Brian Goodenough (Practice Group Leader)...517.371.8147...bgoodenough@fosterswift.com
Tyler Olney...248.538.6352...tolney@fosterswift.com
Mike Sanders...517.371.8210...msanders@fosterswift.com

While the information in this article is accurate at time of publication, the laws and regulations surrounding COVID-19 are constantly evolving. Please consult your attorney or advisor to make sure you have the most up to date information before taking action.

Categories: COVID-19 and Workers' Compensation, Legislative Updates

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Mike is a member of the Firm’s Employer Services practice group. His practice focuses on representing employers, insurance carriers, and third-party administrators in workers’ compensation matters across Michigan. He has experience advising clients on various labor and employment law issues as well.

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