Updates to Workers' Compensation Issues Raised by Coronavirus and New Emergency Rules for "First Responders"

As you know, Governor Gretchen Whitmer recently declared a State of Emergency on March 10, 2020 in response to the COVID-19 pandemic.  The President declared a National Emergency on March 13, 2020. 

On March 18, 2020, the Director of the Michigan Department of Labor and Economic Opportunity (“Director”), with the concurrence of the Governor, promulgated a first set of Emergency Rules pertaining to “first response employees.”  As set-forth in our earlier March 20, 2020 and March 30, 2020 Legal Updates, that first set of Emergency Rules created a irrebuttable and absolute presumption that certain “first response employee(s)” have sustained a “personal injury that arises out of and in the course of [their] employment” if the employer directed them to be quarantined due to a confirmed or suspected exposure to COVID-19, or if they had been diagnosed with COVID-19 by any one of a number of different delineated methods.

Further, that first set of Emergency Rules defined “first response employee” very broadly – while also failing to include certain other employees who are considered “first response employee(s)” in other contexts.

On Monday afternoon, March 30, 2020, the Director promulgated a new set of Emergency Rules (“New Rules”). These New Rules specifically state that they completely supersede the first set of Emergency Rules.  These New Rules remove the irrebuttable presumption set-forth in the first set of Emergency Rules – and replace that absolute presumption with a rebuttable presumption. Now, a “first response employee,” as defined somewhat differently in these New Rules, who is actually “diagnosed with COVID-19,” whether by a physician or as a result of a test, is presumed to have sustained “a personal injury that arises out of and in the course of employment.”  However, that presumption may be rebutted by the employer.

A claim may be denied only where the denial is based upon “specific facts demonstrating that the first response employee was not exposed to COVID-19 at work.”  The New Rules shift the ultimate burden of proof to the employer – to disprove that the first response employee’s COVID-19 exposure arose out of and in the course of the employment.  And, a quarantined first response employee is apparently no longer covered by the New Rules.  Only first response employees with a diagnosed case of COVID-19 are included. 

The New Rules contain a different description of those who will be considered a “first response employee” – but there remain some ambiguities.  “First response employees” now specifically include:

a. A person working in ambulance operations and advanced mobile emergency care services, county medical care facilities, emergency services, emergency medical services, homes for the aged, hospices, hospitals, or nursing homes.

b. A person working in a home health agency or visiting nurse association.

c. Any person working as a physician, physician assistant, nurse, emergency medical technician, paramedic, or respiratory therapist.

d. Any police officers, fire fighters, emergency medical technicians, on-call members of a fire department, volunteer civil defense workers, on-call members of a life support agency, or members of an emergency rescue team, as those terms are used in the worker’s disability compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941.

e. A member of the state police or an officer of the motor carrier enforcement division of the department of the state police.

f. A state correctional officer or local corrections officer.

The New Rules do provide an employer with the option of denying the workers’ compensation claim of a first response employee who has been diagnosed with COVID-19 – but if, and only if, the employer’s denial is “based on specific facts demonstrating the first response employee was not exposed to COVID-19 at work.”  Then, the employer who properly denies such a claim will bear the ultimate burden of proving that the employee’s claimed COVID-19 is not work-related. 

We do not recommend that any employer violate the New Rules unless and until they are invalidated by a court of competent jurisdiction -- because the New Rules make clear that a denial of benefits, in the absence of specific facts to rebut the presumption of compensability, potentially will subject the employer to the stiff penalties set-forth in section 631. These penalties include, but are not limited to, revocation of an insurer’s licensure, or revocation of an employer’s status as a self-insured.

If you have any questions about the application or validity of the New Rules, please contact us – we are here to help:

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