States Provide COVID-19 Liability Protection for Compliant Employers

Many states have either enacted or are considering legislation to shield employers from liability for COVID-19-related lawsuits. Although, many of these laws only apply if the employer can show it acted in good faith in accordance with federal, state, and local guidelines.

For example, in Iowa, an employer’s good faith effort to comply with public health guidance acts as a defense to COVID-19 liability. However, in other states, such as Mississippi, a failure to substantially comply with public health guidance can prevent application of the COVID-19 liability shield.

Recently Enacted Michigan Laws

More recently, two new Michigan laws were enacted to provide organizations with immunity from COVID-19 lawsuits, but only if the organization complies with COVID-19 employee training requirements and adheres to all other workplace safety rules.

MIOSHA’s Emergency Rules explicitly mandate COVID-19 workplace training and specify the safety topics that must be covered in the training. These rules were issued in response to the recent Michigan Supreme Court decision nullifying Governor Whitmer’s COVID-19 executive orders. Employers who fail to provide COVID-19 workplace safety training will not only be in violation of the MIOSHA’s Emergency Rules but will also be unable to take advantage of these new liability shields

Tort Liability Protection

HB 6030 insulates businesses from COVID-19 tort claims brought by a person who entered the business after March 1, 2020, if it can show that it “act[ed] in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm.”

The new law essentially adopts the workplace safeguards outlined in Governor’s Whitmer’s now nullified COVID-19 executive orders for any tort claims arising after March 1, 2020, to motivate employers to maintain continued compliance.

MIOSHA Liability Protection

HB 6031 shields employers from COVID-19 claims brought under Michigan’s Occupational Safety and Health State Plan if the employer complied with COVID-19-related “statutes, orders, and rules and regulations, executive orders, and agency orders.” Again, compliance with Governor’s Whitmer’s prior COVID-19 executive orders and MIOSHA’s Emergency Rules is essential to take advantage of the liability protection for MIOSHA claims occurring after March 1, 2020.

Notably, both HB 6030 and HB 6031 state that an isolated, de minimis incident of non-compliance does not affect immunity as long as it is unrelated to the alleged injury or illness. However, neither new law defines what is considered de minimis for purposes of non-compliance.

Both laws became effective upon enactment on October 22, 2020.

COVID-19 Workplace Training

In short, employers can take advantage of MIOSHA and tort claim immunity if the company provides compliant COVID-19 employee training and adheres to other workplace safety rules applicable at the time. Limiting workplace exposure to COVID-19 can also help abate potential workers’ compensation claims.