On October 22, 2020, Governor Whitmer signed into law House Bill 6159, creating a Pandemic Health Care Immunity Act to protect health care workers against liability for claims arising out of care provided in response to the COVID-19 pandemic. This law was part of a package of COVID-related bills signed last week that included a law that protects businesses that comply with “all relevant COVID-19 related statutes, orders and rules issued by federal, state, and local authorities” from liability if an employee becomes sick at work.

Gov. Whitmer’s approval of HB6159 implements a Pandemic Health Care Immunity Act to “provide immunity for health care providers and health care facilities in the event of a pandemic, and to clarify the time frame for the immunity.” This development is good news for health care facilities and their employees who have rendered care to COVID-19 patients, including nursing homes, surgical centers, and hospice facilities, as well as virtually all health care providers.

The Act will retroactively apply to the time period at the outset of the COVID-19: March 10 – July 14, 2020. The Act is silent as to any specific enumeration of what acts or omissions would constitute “health care services in support of the state’s response to the COVID-19 pandemic.”

HB6159 was the legislature’s second attempt to implement liability protections for COVID-19-related care in the wake of the current pandemic. The first attempt arrived via Senate Bill 899, which was vetoed by Governor Whitmer on August 10, 2020. SB899 would have established immunity from any act or omission by a health care provider or facility “rendered in support of Michigan’s response to the COVID-19 pandemic” during the period from March 10, 2020 to January 1, 2021.

SB899 defined “health care services rendered in support of the state’s response to the COVID-19 pandemic” as services provided to those with confirmed, presumed, or suspected COVID-19. Governor Whitmer’s August 10 veto letter stated that SB899 “would endanger patients and workers unnecessarily, making it nearly impossible to obtain relief from injury during a state of emergency.”

The house bill that was signed into law does not provide as much protection for healthcare facilities as the senate bill, nor does the immunity period last as long as it would have for the senate bill.

Healthcare facilities need to be aware of these changes, as they result in increased exposure than what would have resulted had the prior senate bill become law. Either way, it should be expected that experienced plaintiff’s attorneys will develop arguments that try to avoid the protections of the Act. As the pandemic continues, our attorneys will continue to monitor any additional legislation related to the Act.

With regard to employers, the new law protects businesses that comply with “all relevant COVID-19 related statutes, orders and rules issued by federal, state, and local authorities” from liability if someone becomes sick at a business.  When employers follow those rules, they are protected from liability under the Michigan Occupational Health and Safety Act if a worker gets sick at work. The law also allows employees to stay home over virus concerns and would prohibit retaliation if they stay home after they’ve been exposed or show symptoms of COVID-19.

FBMJ attorneys are ready to assist healthcare facilities and employers interpret and implement these changes in the law. For more information about how we can assist you, contact us today at 734-742-1800.