A package of GOP bills to shield companies from liability during COVID-19 passed out of a House panel Wednesday, after incorporating feedback from opponents who had ripped into the bills the day before.
The legislation has been a major priority for business groups, led by the Michigan Chamber of Commerce, which have opposed many of Gov. Gretchen Whitmer’s emergency actions aimed at stopping the spread of COVID-19.
“The legislation would incentivize job providers and others to follow public health guidance, executive orders and the like,” the chamber said in a statement. “It does so by telling them that, if they take reasonable steps to follow the rules, they will be protected against baseless lawsuits, including exposure and other personal injury claims.”
All bills are sponsored Republicans except HB 6101, which is sponsored by state Rep. Wendell Byrd (D-Detroit). Corresponding corporate immunity bills in the Senate — SB 1022, 1023 and 1024 — have not yet moved from the Senate Committee on Economic and Small Business Development.
The legislation comes as the state continues to crack down on businesses that violate safety protocols during COVID-19. In a statement Thursday, the Michigan Occupational Safety and Health Administration (MIOSHA) announced that it had issued citations to 19 businesses — totaling $51,400 — for “serious violations” in following the state’s COVID-19 safety and health workplace guidelines.
Michigan has had more than 113,000 coronavirus cases and 6,600 deaths.
Tuesday’s version of the legislation, before each bill was reworked and adopted with substitutions on Wednesday, had received strong pushback from an employment attorney and a union representative.
Marla Linderman, a Michigan employment lawyer, spoke out vehemently against the bill package and called the legislation “poorly written.”
“I appreciate hearing that a revised version of this legislation is being considered, and that everyone understands that the currently proposed legislation is poorly written,” Linderman said via Zoom testimony on Tuesday, “but the revisions I’ve seen so far, they don’t fix the problem. Instead, it further diminishes accountability and sacrifices employee [safety].”
Linderman argued that the bills would not only take away all of a workers’ rights, but potentially put businesses on the line for more litigation than before.
“These laws don’t protect businesses. It protects bad actors. These bills give businesses a disincentive to do the right thing for the health and safety of employees and customers, and silence employees who promote a safe work environment,” Linderman said.
Tim Greimel, a Democratic former House minority leader now with AFSCME, expressed “grave concerns” Tuesday about the legislation as it was written. Greimel told Judiciary Committee Chair Graham Filler (R-DeWitt) that he would need to make “very serious and overarching changes” if he wanted the union to possibly take a neutral stance rather than opposing the bills.
One of those changes, Greimel said, would need to be language added that requires businesses to comply with all applicable state and federal regulations/guidances, so they couldn’t just “cherry-pick one or two relatively low standards to comply with.”
Dave Greco of the Michigan Manufacturers Association (MMA) also gave testimony Tuesday, and was the only speaker to signal full support for all legislation in the package as it was written.
“The legislation before you today would protect businesses that have operated in good faith and have taken reasonable actions to follow public health guidance,” Greco said.
The House panel met again Wednesday morning. Filler said many changes had been made to the legislation taking into account critiques from the day before, and in short order made motions to adopt amendments on each bill.
All bills passed out of committee with eight yes votes (all Republicans), three nos and two passes (all Democrats).
HB 6030 would provide liability protection to certain persons during COVID-19 — including individuals, partnerships, corporations, associations, governmental entities, other legal entities, schools, colleges, universities and nonprofit charitable organizations. Its adopted H-4 substitute makes tweaks including specifying standards for cleaning supplies and adding public guidance from specific state departments.
HB 6031 would provide protection from liability to certain persons upon the reopening of a business or school. Its H-4 substitute specifies that in order to receive immunity, an employer must have been in compliance with federal and state regulations — not in “substantial” compliance or “reasonably consistent” with compliance, as the previous language read.
The protection does not apply if the employer willfully exposed a worker to COVID-19, but the new substitute adds that it still applies in this case if the employee was working in a health care setting at the time of exposure.
HB 6032 would prohibit an employer taking adverse employment action against an employee who is absent from work during a declared emergency. The H-2 substitute tightens up some language, including that used to describe how soon an employee should be allowed to return to work and defines “close contact” as closer than six feet away for more than 15 minutes.
HB 6101 would provide protection from liability to certain persons on reopening of business or school. The substitute that passed clarifies that “public health guidance” means guidance issued by the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration of the U.S. Department of Labor, or by MIOSHA, the Department of Health and Human Services (DHHS), the Department of Licensing and Regulatory Affairs (LARA), or another Michigan agency.
Finally, HB 6159 would establish the Pandemic Health Care Immunity Act to provide immunity for health care providers and health care facilities during a pandemic.
The amendment was authored by state Rep. Brian Elder (D-Bay City), who said he inserted language to ensure that “health care facilities are given an important incentive to follow the rules and protect their workers, and that workers are able to access a remedy if their employers’ actions have fallen short.”
All bills would apply retroactively to claims accrued after Jan. 1.
But even with the new changes, many groups are still firmly against the idea of providing any sort of immunity to businesses during COVID-19.
“Now that the Republican Legislature is back from vacation, the thing at the top of their agenda is to grant immunity to businesses from responsibility if people get infected with the virus at their business,” Michigan AFL-CIO President Ron Bieber said in a statement Wednesday.
“Passing this proposed legislation would destroy accountability and responsibility for the negligent actions of the bad employers and it would create special classes of individuals and businesses who receive special treatment,” Bieber said, adding that the legislation would give businesses a free pass to act recklessly without fear of being held accountable.
“If Republicans aren’t going to work with the governor [Gretchen Whitmer] on bringing people together as a state to fight this virus, they should just go back on vacation and stay out of the way,” Bieber continued.
The Michigan League for Public Policy (MLPP) also strongly opposes the bills.
“At a time when unemployment remains high and jobs are at a premium, workers are more beholden to their employers than ever. But we have to make sure that businesses don’t take advantage of that and cut corners on the safety protections workers and customers alike need and deserve,” said MLPP Senior Policy Analyst Peter Ruark.
“The League is concerned that the immunity bills do not offer enough protection to workers. Employees should be able to use the courts to address situations in which they believe their employers are not doing due diligence to keep them safe, and this ability should not be preempted by the Legislature,” Ruark said, adding that there are protections against frivolous lawsuits that already exist, and going further than that will hurt workers.