Thursday, July 30, 2020
Senator Zorn, the Michigan state republican senator who allegedly wore a protective face mask on the Michigan Senate floor depicting a design similar to the battle flag of the Confederate States of America, has proposed his own type of workers’ compensation COVID-19 presumption—an irrebuttable presumption against coverage. (Maybe you think the Confederate Flag stuff is irrelevant but I will get back to that shortly). First the bill, Michigan Senate Bill 1019:
(1) Notwithstanding any other provision of this act, and except as otherwise provided in subsection (2), an employee who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury is not eligible to be paid compensation as otherwise provided for in this act if all of the following conditions are met:
(a) The personal injury was the result of the employee's exposure to COVID-19.
(b) The employee was exposed to COVID-19 during the COVID-19 emergency.
(c) The employer was in compliance with a federal or state statute or regulation, executive order, or public health guidance that was relevant to, and applicable at the time of, the employee's exposure to COVID-19. If more than 1 relevant public health guidance applied to the employer at the time of the exposure, the requirements of this subdivision are satisfied if the employer was in compliance with any relevant and applicable public health guidance.
(2) Subsection (1) does not apply to a personal injury that was the result of an intentional tort as described in section 131.
(3) This section does not do any of the following:
(a) Create, recognize, or ratify a claim or cause of action of any kind.
(b) Eliminate a required element of a claim of any kind.
(c) Amend, repeal, alter, or affect any other immunity or limitation of liability.
(4) This section applies retroactively to a personal injury that occurs after March 11, 2020.
(5) As used in this section:
(a) "COVID-19" means the novel coronavirus identified as SARS-CoV-2 or a virus mutating from SARS- CoV-2.
(b) "COVID-19 emergency" means the state of emergency declared under 1945 PA 302, MCL 10.31 to 10.33, on March 10, 2020, and any subsequent orders or amendments to those orders.
(c) "Public health guidance" means written guidance related to COVID-19 issued by the Centers for Disease Control and Prevention or the Occupational Safety and Health Administration of the United States Department of Labor, or by the department of health and human services or another agency of this state.
So if an employer is in compliance with any “public health guidance” (and how could it not be given the weakness of the guidance we have seen across the political landscape) an employee is “not eligible to be paid compensation” for any COVID-19 claim that does not rise to the level of an intentional tort. This formulation is, of course, rife with notions of “fault”: the employer was not at fault because it was attempting in good faith to comply with public health compliance. This sounds like a negligence defense which, as you know dear readers, is irrelevant under “classical” workers’ compensation doctrine.
Back to the Confederate Flag. I am not going to bother linking you to the variety of public health authorities pointing out the racial disparities with respect to who has been able to work from home and who has not. I cannot believe that the author of this Michigan bill could have much concern for the workers most likely to be exposed to the coronavirus. I suspect you can complete my syllogism.
If this and the McConnell/Cornyn immunity bill were to become law, workers would—as a matter of law—have no cause of action for wrongful contraction of COVID-19. They may have access to health insurance depending on their plans’ coverage. And they may have access to private disability plans (though under ERISA employers may terminate employee welfare benefit plans at any time—a point no one seems to want to believe). Social Security Disability covers only total disability—and even then there is a five-month waiting period and it is difficult to qualify. Bottom line—workers are dancing on a razor’s edge. I find it difficult to believe this could become law, but it does shine light on why the McConnell/Cornyn bill repeatedly recites that it would not preempt stricter state immunity. “Nothing in this subtitle shall be construed to affect the applicability of any provision of any Federal, State, or Tribal law that imposes stricter limits on damages or liabilities for personal injury caused by, arising out of, or related to an actual, alleged, feared, or potential for exposure to coronavirus, or otherwise affords greater protection to defendants in any coronavirus exposure action than are provided in this subtitle.” Sec. 121(b)(2). As bad as McConnell/Cornyn is, it would not set a floor, which is a scary thought.
Michael C. Duff