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Michigan COVID-19 "Liability Shield" Leaves the Door Wide Open for Lawsuits

The Michigan legislature has been hard at work on a package of bills designed to protect business owners and employers from COVID-19 civil liability. However, businesses need to be aware that the bill package is not a "silver bullet" to eliminate pandemic-related lawsuits. In fact, the proposed law leaves open significant pathways for potential lawsuits.

The bills propose that a business can be immune from COVID-19-related civil liability. It sounds good in theory, but here's how it works in practice. In order to fall under the protections of the COVID-19 Response and Reopening Liability Assurance Act, a business must have followed "all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19". Businesses that were somehow able to comply with the ever-changing litany of various requirement may claim immunity.

However, the complex and confusing nature of the shifting executive orders and other public health guidance, means that businesses may have a difficult time showing compliance. The proposed law fails to adequately address this concern. Minor, isolated deviations from the executive orders will not affect a business's ability to claim immunity. But what is a minor deviation? What is an isolated deviation? These unanswered questions leave the door wide open for plaintiff litigants to argue their cases.

Even if a plaintiff's argument is a weak one, a business will still have to hire an attorney and defend the case. This creates significant financial pressure that may push a business toward settling, rather than litigating, a case, even if it's a frivolous one. The legislature has its sights focused in the right direction. But in my view, the COVID-19 Response and Reopening Liability and Assurance Act misses the mark in a huge way.

One more thing. The COVID-19 Response and Reopening Liability Assurance Act is a backdoor way to validating the Governor's unconstitutional orders. The Michigan Supreme Court invalidated all executive orders issued after April 30, 2020. But the legislature is withholding COVID-19 immunity from the businesses that did not comply with those unconstitutional orders, even if they fell short after a good faith effort. This does not bode well for the average small business that had a difficult time keeping pace with the incredible number of executive orders.

Businesses should not let their guards down in response to this proposed law. The standards for immunity seem quite high, as does the likelihood of a trigger-happy plaintiffs' attorney being able to shoot holes in your defenses.

If your business is having a tough time dealing with this public health crisis, it's time to contact a lawyer! Attorney Brandon Grysko concentrates his practice in labor and employment, business, and municipal matters. Brandon has helped countless small-businesses in the Western Wayne-County area navigate the murky waters of the COVID-19 crisis; our mission is to see you thrive. Contact Brandon Grysko by email or by phone! (248) 380-0000

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