Legislation was recently signed into law, assigned Public Act 238 of 2020, that was intended to protect employers against retaliatory legal action from employees related to COVID-19. It is important to note that this legislation was not developed as a guidance tool for regulatory enforcement. However, upon review, MITA staff now feels that this new law may have inadvertently expanded COVID liability for employers of all types.
At issue is a section in the new law that deals with employees who have had close contact with a COVID positive individual and the protocols that are required in order to bring those employees back to work. As written, an employee can only come back to work after a 14-day quarantine OR the individual who tested positive receives a medical determination that he or she did not have COVID-19 at the time of contact with the employee.
MITA was actively involved throughout the legislative process with a large coalition of business groups, including the Michigan Chamber of Commerce, the Small Business Association of Michigan and many others, which gave significant input into the four-bill package. MITA specifically requested language that an employee who has a negative COVID test could immediately return to work, similar to language that was included in the Governor’s Executive Order for most of the summer.
However, legislative leaders worked behind closed doors with the Governor and her staff to finalize the above-referenced language, and ultimately did not include any reference to negative COVID tests. The legislation passed in a last-minute flurry before the Legislature went on break for the elections. Insider accounts now reveal that Governor Whitmer’s administration was unwilling to include any reference to negative COVID tests at all in the final version that was signed into law and thus, the language was eliminated from the negotiations.
This law has been made retroactive to March 1, 2020. That said, ironically, industry practice since that time has included the allowance for employees to return to work immediately following a negative COVID test. And in some cases, based on CDC guidelines, a return to work is even allowed if the employee is asymptomatic.
MITA has aggressively notified the business coalition of the risk that this new law presents to ALL businesses across the state, not just the construction industry. MITA has also engaged the legislative bill sponsors and legislative leadership in an effort to find a resolution as quickly as possible. However, the reality is that fixing a legislative issue is challenging and may take months to resolve.
MITA (along with most other business groups) feels that industry practice from the last eight months of following the CDC guidelines for critical infrastructure workers should continue to be the norm.
Please feel free to contact Mike Nystrom, Executive Vice President, at mikenystrom@thinkmita.org, Lance Binoniemi, Vice President of Government Affairs, at lancebinoniemi@thinkmita.org, Rob Coppersmith, Vice President of Membership Services, at robcoppersmith@thinkmita.org, or Greg Brooks, Director of Safety and Compliance, at gregbrooks@thinkmita.org. They all can also be reached at (517) 347-8336.
