Michigan Workers' Comp Defense Blog

Deputy Director of LEO Issues New Emergency Rule Affecting Workers’ Compensation

On October 2, 2020, the Michigan Supreme Court ruled that the law upon which Governor Gretchen Whitmer relied to extend the State of Emergency after April 30, 2020 is unconstitutional. The Supreme Court's ruling, which we discuss here, invalidates the Governor's Executive Orders issued during the extended State of Emergency. Executive Order 2020-128, issued on June 18, 2020, established a rebuttable presumption that a "COVID-19 Response Employee" (a term which was not well-defined within the Executive Order) has sustained a compensable injury when he or she is diagnosed with COVID-19. Executive Order 2020-128 contained language quite similar to the March 30, 2020 Emergency Rule issued by the Department of Labor and Economic Opportunity ("LEO").

Initially, there was some confusion as to when the Supreme Court’s October 2, 2020 decision would take effect. On Monday, October 12, 2020, the Court clarified that the Governor’s Executive Orders “have no continuing legal effect.” Thus, as of October 2, 2020, Executive Order 2020-128 became null and void. 

On October 15, 2020, the Deputy Director of LEO, with the Governor's approval, reacted to the Supreme Court's decision by promulgating a new Emergency Rule to functionally replace Executive Order 2020-128.  The new Emergency Rule provides another rebuttable presumption for “COVID-19 First Response Employees” similar to the Governor's Executive Order 2020-128 and the March 30, 2020 Emergency Rule promulgated by LEO. The presumption applies to certain workers who were confirmed as COVID-19 positive by a physician or by a test. 

This newest Emergency Rule provides the rebuttable presumption to physicians, physician assistants, nurses, medical first responders, EMTs, EMT specialists, paramedics, respiratory therapists, law enforcement officers, firefighters, emergency rescue team members, volunteer civil defense workers, on-call members of life support agencies, and workers who work in the following workplaces:

1. Ambulance operations, including advance mobile emergency care services. See MCL 333.20902(5).
2. County medical care facilities. See MCL 333.20104(3).
3. Emergency response services. See MCL 484.1102(m).
4. Homes for the aged and hospices. See MCL 333.20106(3-4).
5. Hospitals. See MCL 333.20106(5).
6. Nursing homes. See MCL 333.20109(1).
7. Home health agencies or a visiting nurse association providing in-person medical care to patients. See MCL 333.20173a(15)(f).
8. Correctional facilities, jails and detention centers.

This new Emergency Rule remains in effect until March 20, 2021, unless invalidated by a court, of course.  Most importantly, it applies to workers who contracted COVID-19 on or after March 18, 2020. 

With all of the changes in the law, employers, carriers, and third-party administrators should consult a workers' compensation attorney regarding each COVID-19 claim. Each situation is very fact-dependent. We will continue to monitor the legal landscape and are available to assist with making determinations on these complicated issues of first impression.

Alicia Birach | 248.785.4172 | abirach@fosterswift.com
Mike Cassar | 517.371.8110 | mcassar@fosterswift.com
Brian Goodenough (Practice Group Leader) | 517.371.8147 | bgoodenough@fosterswift.com
Tyler Olney | 248.538.6352 | tolney@fosterswift.com
​​​Mike Sanders | 517.371.8210 | msanders@fosterswift.com

Categories: COVID-19 and Workers' Compensation, Legislative Updates