Michigan's Emergency Rules Give Personal Injury Presumption to "First Response Employees" with COVID-19

As you know, Governor Gretchen Whitmer recently declared a State of Emergency in response to the COVID-19 pandemic. As part of that response, Governor Whitmer, in conjunction with the Director of the Department of Labor and Economic Opportunity, Jeff Donofrio, promulgated Emergency Rules (“Rules”) regarding workers’ compensation coverage for certain employees working in the health field, including first responders. We discussed the Rules in an earlier article, and we prepared this article in response to several questions we have received from clients in order to clarify some of the ambiguities in the Rules.

In pertinent part, the Rules provide an absolute presumption that certain “first response employee(s)” sustained a personal injury arising out of and in the course of their employment if their employer directed them to be quarantined due to a confirmed or suspected exposure to COVID-19 or if they have been diagnosed with COVID-19.

Under the Rules, a “first response employee” includes “a person working as a practitioner as defined in Michigan Administrative Code Rule 418.10109(l).” Rule 418.10109(l) defines “practitioner” as “an individual who is licensed, registered, or certified as used in the public health code.”

According to Michigan’s public health code, the term “practitioner” includes, but is not limited to, medical first responders, emergency medical technicians, emergency medical technician specialists, and paramedics. See MCL 333.20950(1). Thus, we believe that individuals working in these occupations would be considered “first response employees” under the Rules.

The Rules also define “first response employee” as a “person working in a health facility or agency as defined in the public health code.” Michigan’s public health code provides that “ambulance operations” and other medical first response services fall under the expansive category of a “health facility or agency.” MCL 333.20106(1)(a).

Based on the foregoing, we believe the Rules encompass not only emergency medical technicians and paramedics, but arguably, any employee working in an ambulance operation.

You can read our articles from March 18, 2020 (Legal Impact of Coronavirus on Workers' Compensation Law)  and March 20, 2020 (The Workers' Compensation Issues Raised by Coronavirus Pandemic and Michigan's Newly Promulgated Emergency Rules for "First Response Employees") for additional information.

If you have questions about whether specific occupations not mentioned in this article qualify as a “first response employee”, or any other questions regarding the Emergency Rules, please contact us:

Alicia Birach...248.785.4172...abirach@fosterswift.com
Brian Goodenough (Practice Group Leader)...517.371.8147...bgoodenough@fosterswift.com
Mike Sanders...517.371.8210...msanders@fosterswift.com