Michigan Executive Order 2020-128: Clarifying Workers’ Disability Compensation Eligibility for Workplace Exposure to COVID-19Jun 18, 2020
On June 18, 2020, Governor Gretchen Whitmer issued Executive Order 2020-128, which sought to clarify her previous statements and directives regarding workers’ disability compensation eligibility in the State of Michigan for employees who have been confirmed as positive for the novel coronavirus (COVID-19). This Executive Order officially replaced the Emergency Rules for “first response” employees, which the Department of Labor & Economic Opportunity previously filed with the Secretary of State on March 30, 2020. With Executive Order 2020-128, Governor Whitmer has clarified and expanded the traditionally understood definition of a “first response employee” during the COVID-19 era. Under the new Order, the term “first response employee” has been replaced by “COVID-19 response employee.” A “COVID-19 response employee” is now defined as “an employee whose job responsibilities require them to have regular or prolonged contact with COVID-19 in the course of their employment.” For the purposes of Executive Order 2020-128, the following individuals are presumed to be “COVID-19 response employees”: • Any person who is required to report to work in one or more of the following workplaces: an “ambulance operation,” a “county medical care facility,” an “emergency response service,” a “home for the aged,” a “hospice,” a “hospital,” a “nursing home,” or a “home health agency,” as those terms are defined in the Public Health Code, MCL 333.1001 et seq.; • A person working as a physician, physician assistant, licensed practical nurse, registered professional nurse, medical first responder, nurse, emergency medical technician, paramedic, or respiratory therapist who is required to provide in-person medical care to patients; • A law enforcement officer or motor carrier officer, to the extent that the officer is required to report to work and interact with the general public; • A firefighter or other member of an emergency rescue team; • A volunteer civil defense worker or on-call member of a life support agency, to the extent that the individual is required to report to work; and • Any state or local government employee who is required to work within the secured perimeter of a penal institution, including but not limited to correctional facilities, jails and detention centers. For the purposes of determining workers’ disability compensation eligibility, any “COVID-19 response employee” who has been confirmed as COVID-19 positive on or after March 18, 2020, either by physician or by test, shall be presumed to have suffered a compensable, work-related “personal injury,” as that term is defined in Section 401(2)(b) of the Workers’ Disability Compensation Act, MCL 418.401(2)(b). This presumption of compensability remains subject to rebuttal by specific facts to the contrary. The provisions of Executive Order 2020-128 will remain in effect until the termination of any currently or subsequently declared states of emergency and/or disaster which may arise out of the COVID-19 pandemic.