Michigan may soon move to shield businesses from coronavirus lawsuits

Fran Coy Salon & Spa in Ann Arbor reopened in June with thousands of dollars in protective equipment. (Bridge photo by Paula Gardner)

Cleaning, reorganizing space for staff and customers and buying barriers absorbed all of John Coy’s time during the two weeks before his Ann Arbor-area salon reopened on June 15.

So did researching expectations for operating a salon during the coronavirus pandemic, he said. “I was trying to understand what the rules were that were constantly changing. I was overwhelmed with all of the different procedures.”

By the time the doors opened at Fran Coy Salon & Spa, Coy said he was confident staff and customers would be safe. He’d pored over Gov. Gretchen Whitmer’s executive orders and the guidelines from the U.S. Centers For Disease Control and Prevention, and more than once called his attorney for advice.  

“There was one question after another that I didn’t know the answer to,” Coy said. “I wanted to be sure.”

Business owners across Michigan are looking for answers on how COVID-19 changes their legal liability as they reopen to the public and make changes for public health. 

 

“Certainly, obligations have been imposed on businesses,” said Neil Juliar, attorney at Conlin, McKinney & Philbrick in Ann Arbor. “If there are violations of legally imposed duties, and harm results, there typically can be liability."

At least four states nationwide have passed laws granting businesses immunity from lawsuits related to COVID-19, and a bill may be introduced soon for Michigan to follow suit. But many questions remain, as much about coronavirus is unknown.

“There is a significant concern by businesses that they may be able to survive a shut down period, but they may not be able to survive lawsuits that may come from employees or customers should someone that touches their business fall ill,” said Sandy Baruah, CEO of the Detroit Regional Chamber. 

“They should have some sort of liability protection,” Baruah said. “They can’t be subjected to frivolous lawsuits.”

State Rep. Thomas Albert, R-Lowell, is spearheading legislation that would address business liability for Michigan businesses that follow executive orders and the CDC guidelines, he told members of the Small Business Association of Michigan in a video conversation last week with  Brian Calley, the group’s president and a former lieutenant governor.

The bill is in development and subject to change, Albert said last week. If a business is operating in a prudent manner by  following federal or state regulations or executive orders,  it would be protected from civil liability, said Albert, who was unavailable Monday to provide an update. Product liability protection is another consideration for businesses that quickly retooled to produce health-related products for essential workers like hand-sanitizer or masks. 

In his vision of the bill, Albert said, litigants would need to show medical harm to bring a lawsuit, and not simply test positive and show no symptoms or resulting medical condition. 

There also would have to be convincing evidence for some type of reckless behavior on behalf of a business. The pending bill is not intended to remove liability for businesses that are either negligent or deliberately not following state or federal guidelines, he added.

“Someone would have to be harmed to bring a suit,” Albert said. 

Fran Coy Salon & Spa employee Haley Alvarez, hired to admit customers at the door with COVID-19 checks, shows coworker Sydney Wickersham her process. (Bridge photo by Paula Gardner)

 

The Michigan Chamber of Commerce is among the groups working on behalf of the legislation. 

“There is a lot of legal uncertainty out there, and in some cases it can be quite paralyzing,” said Wendy Block, vice president of business advocacy and member engagement for the Michigan chamber.

Block said that she’s fielding questions from hundreds of members over many pandemic issues, including how asymptomatic carriers may be bringing the virus into public spaces like businesses that have reopened. Even a business following all guidelines will ask, “Is there a chance I’ll still get sued if something goes wrong?” Block said. “The answer seems to be: Yes, you could.”

Gov. Gretchen Whitmer issued immunity to health care workers during Michigan’s state of emergency. Nationally, North Carolina, Oklahoma, Utah and Wyoming were among the first to address coronavirus-related liability issues outside of health care, and other states may follow suit.

Republican leaders in Congress also have said another COVID-19 relief package would need to include business liability protection. Democrats and unions oppose the immunity, saying it could encourage lax practices by businesses.

Whether the protections work as intended is untested. 

“We don't know how effective liability waivers are going to be,” said Jon Bylsma, a partner at Varnum law firm in Grand Rapids. 

Bylsma said his best advice to business clients is to review the executive orders that affect their industry, “follow those consistently and …  be familiar with CDC guidelines so that they can demonstrate that they’re following best practices. “

He added that the coronavirus pandemic is an “open and obvious danger,” and most residents should know they could risk exposure by shopping. 

“For anyone attempting to pursue a claim because  they contracted COVID-19, they would certainly have significant issues to prove causation,” said Bylsma. “How are they going to prove exactly when and where they contracted the virus?”

Civil liability is only one legal question facing businesses, said Juliar, the Ann Arbor attorney.  Among the others are COVID-related losses in insurance and the enforcement of contracts interrupted or unfulfilled because of the pandemic.

Block said she’s encouraged by the potential state and federal legislation to address business liability. She’s seeing both small businesses and Fortune 100 companies raise concerns, she said, and she said she’s seeing schools and universities also line up behind the issue as they consider opening this fall. 

At Fran Coy Salon & Spa, John Coy spent at least $12,000 buying partitions and hiring staff to check customers at the door. Workers are screened daily, and guests had to wear masks before Whitmer made them mandatory in a new order that took effect Monday.

A couple of customers have gotten angry when staffers asked them to leave if they wouldn’t wear a mask, Coy said. He confirmed that policy with his attorney, who said the rule could be enforced without legal risk. 

In the meantime, Coy said, he’s gained a few dozen customers who see online reviews of the salon’s safety measures.

“We felt like if we were following the rules, it would be tough to build a case against that,” Coy said.

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Comments

George
Tue, 07/14/2020 - 9:48am

Given what the article states, it seem as if the burden of proof is on the persons bringing the lawsuit. How could they possibly prove that one particular business is where they contracted COVID when the virus could be anywhere. And could they prove they did not at some time slip their mask off or that their mask was, indeed, effective in blocking the virus? Some folks have lost their job due to the epidemic, but not lawyers.

Business buzzing
Tue, 07/14/2020 - 10:03am

Shipwreck meet trainwreck. Never a concern for humans, just make money at any cost.

Don Alexander
Wed, 07/15/2020 - 8:25am

You got that right. All this comes down to is Wall Street speculators and thier greed getting the best of them like it always has. "Throw as many serfs to the front lines of my stalled investments as possible"! Insanity. Every other country in the world that has dealt with this effectively has shut everything down accept the most vital health care and supply chains, given people and business the funding they need to keep distanced and are now in phase 3 or completely opened back up. Not here, "let's get out there and beat the competition by opening our economy first!. Weird how a virus could care less about neo liberal free market tactics.

duane
Wed, 07/15/2020 - 10:54am

It is always disappointing when 'people' come out demeaning everyone that uses money to make their organization work by claiming they place money above those they serve.
The case they are talking about here is about someone trusting the Governor to require what is best for protecting people and is trying to understand and apply all the Governor is requiring and this comment claims they putting money before people.
The reality is that the lawsuits of concern are all about money, so that seem that lawyers/their clients put money above all else.
I wonder if you own a home and have liability insurance, does that mean you put money about humans because all insurance does a pay money for such lawsuits?

middle of the mit
Wed, 07/15/2020 - 5:14pm

[[[I wonder if you own a home and have liability insurance, does that mean you put money about humans because all insurance does a pay money for such lawsuits?]]]

Do you know what insurance is for? It doesn't seem like it. Insurance is so if you or your property hurt someone or put them in danger, they can be recompensed for said damages. Liability protections mean that if you or your property hurt someone, to bad for that person.

This is the Republican ideal.

Until someone hits their car and they want that person that caused the crash to pay for damages. Why can't they just ask what caused them to hit their car and then pay for it themselves? Wouldn't want to put blame on anyone........would we?

Also, when you have to ask Government for liability protections from lawsuits? You know you are putting people in harms way and you don't want to be held responsible for your actions or the harm they cause.

duane
Thu, 07/16/2020 - 2:44pm

middle,
You seem to not appreciate what insurance is for, it is to share/spread the risk of actions by nature or others.
My mother-in-law had an accident on a snowy road this winter and her insurance help pay for her medical care. She was the only one injured or had damage to her car. She had car insurance that spread the risk of the accident. There was a house I pass regularly that during a recent storm had a large tree fall on the roof, I suspect the homeowner had insurance that helped pay for the current repair work. Those both seem outside what you believe insurance is for.
In my mother-in-law's case she had a $500 deductible [she was responsible for the first $500 of damages to her car] and the insurance she had been paying for paid the rest. I suspect that same approach was used by the homeowner I mentioned. In both case it was a share risk with the insurance company. When you get into the large company insurance coverage it is common for the insurance company to do a risk assessment of the company applying for the coverage and making recommended/required changes to lower the risk before writing the policy. In many of the large and successful companies they will create an insurance company [will be regulated like other insurance companies providing similar coverage, have appropriate financial resources to fulfill the policies they write] that will share with other insurance companies writing the policies [for very large risks there are likely to be a group of insurance companies covering the risk].
The government [federal has established protection against being suited] by providing liability protections for companies allows the government to draw on the good works of employers. In the case of that OSHA regulation I have mentioned, the government is encourage to include suggested ways to comply with their regulation in that particular regulation there were some well established practices that not only the government [and the industry] found effective and wanted to encourage be considered by employers. The problem for the company that developed the methods would be put at risk of lawsuits for any event where an employer had used their method [as recommended by the government]. Without the government providing liability to the creator of the method would have to prevent their method from being included in the regulation and the use of the method by others. The reality you are unwilling to accept that when it is about blame, it is about money, and when there is money involved the lawyers will draw anyone and everyone whose name they can some how link to the event. Consider it there were a snowy road and a car struck a school bus, it wouldn't be outside the possibilities of a lawyer for one of the children on the school bus to include in those being blamed [sued] to be the company that delivered the gravel for the road bed. You may believe that the slippery road in northern Michigan was caused by the delivery of the gravel that is a couple of feet into the ground under the road, but I don't. But with the possibility of being sued simply makes it prudent for a certain size company or larger to pay for insurance coverage, and not because they believe that what they do would in anyway cause and event that a lawyer is looking for people to blame [pay].
I disagree with your narrow thinking because you do consider the potential of the whole of an event. They way you use blame is much like a lawyer for punishment [money] and with little regard for future events and people.

middle of the mit
Thu, 07/16/2020 - 6:23pm

[[[[[They way you use blame is much like a lawyer for punishment [money] and with little regard for future events and people.]]]]

And the way you use complacency would leave everyone disabled, in debt and with no recourse for injury sustained by the actions of someone else.

Everyone that reads this............Know that this is what conservatives want. Pay your premiums, but don't ever make a claim! That money is for agents, owners and stock holders!

duane
Fri, 07/17/2020 - 6:29pm

middle,
You still have to learn how to listen, why do you think I could describe such a range of insurance considerations if I hadn't at some point learn by experience. A former employer was so effective at improving workplace safety and health that they paid the worker's compensation insurance for all contractors on their sites, we were so effective at lowering the EMR [experience modification rate for setting insurance rates] that it prove a financial benefit and for all working there proved to helping them returned to their families each night a bit tired but whole and healthy.
You seem to distill everything to money, I personalize events and activities. Money can be a means of comparison, but it doesn't replace the personal involvement and consequences. We were also able to measure how a workplace designed and operated for improved safety/health had financial benefits beyond the reduction in injuries, extended into better planning and practices, improved worked methods as we worked to reduce risk exposure, and all of this extended those [contractors] that came to work on our sites. I am concerned that you have a view of the workplace that was written about a hundred years ago, even more recently about the mid century, but does reflect the past 50 years.
All you can see is money, and every claim to you is money. I doubt you have appreciation of practical side of a claim. For those that work with the individual is the initial emotional distress, the getting immediate medical treatment, follow-up treatment, personal recriminations about a buddy being hurt and what could you have done better, the investigation and associated changes, the recovery and return to work plan, the covering of the job [what you fail to realize operations are made as efficient and effective as possible so there are no excess of workers to cover a job, people need to be schedule in working overtime, this is especially true of 24/7 operations, etc. where all you see is an insurance claim you ignore the person side, the disruption to the individual, to co-workers, to the normal operations, etc. An insurance claim is the simple side of an incident all of the other elements that insurance doesn't cover is what is most disruptive.

middle of the mit
Sat, 07/25/2020 - 6:09pm

duane,

I don't see just money, I see peoples lives that have been upended and have no way to support themselves after an injury and your side telling them to buck up and get a job when no one will hire them because they are physically unable to do a job.

What you see is that the business is the only thing that matters and the hurt or injured are just "disgruntled employees".

This is why Tort reform, and insurance reform are part of the Republican parties Method of Operation.

The less you take to cover injuries means more for the shareholders. And at least they aren't disgruntled and are able to work at making money with their money!

Michigan man
Tue, 07/14/2020 - 10:37am

Simple - Enter at your own risk, etc, etc sign on the door. Let the people that are scared of a possible sickness that supposedly only kills .01% of people stay at home. Let the healthy, strong minded people that love their freedom, go about their business as usual.

Dig deeper, beyond the mainstream media, into this plannedemic. Leave the masks for the surgeons, where they belong.

LMAO
Tue, 07/14/2020 - 1:33pm

The article isn't about masks. Wrong comment section. Conspiracies are also in another section, but thanks for the comic relief.

Michigan Man
Wed, 07/15/2020 - 11:59am

I understand it's easy to call conspiracy when some use logic and critical thinking, versus blindly following the mainstream narrative. :)

Lisa
Tue, 07/14/2020 - 11:56am

But what about businesses that are requiring people to come back to work? My place of employment didn't install barriers and there's no way to social distance. They do temp checks at the door and spray alcohol everywhere, which is counted as "providing safety measures." There are no protections for workers that feel unsafe, and there will be no repercussions to the business if I pick up the virus there. I have no choice.

How awful
Tue, 07/14/2020 - 8:56pm

Make sure to wear a mask AND a face shield. Let them fire you and then sue them.

middle of the mit
Wed, 07/15/2020 - 12:06pm

Welcome to America in the 21st century!

A Yooper
Tue, 07/14/2020 - 12:28pm

Those businesses that ignore the CCD and other medical research prevention guidelines have no right to be “shielded”!
It’s $$$ driven, solely.

Arjay
Tue, 07/14/2020 - 12:38pm

What a sad comment on society that when tragedy strikes, the first thought in some minds is how can I profit from this.

Disgusted
Tue, 07/14/2020 - 1:21pm

I agree the businesses that want to be shielded put profit over the lives of their customers and employees.

Anonymous
Tue, 07/14/2020 - 1:28pm

If police have immunity, why not everyone?

MAGA
Tue, 07/14/2020 - 1:30pm

Why are there any laws? Everyone should just do what they want--Trump/Roger Stone treatment

Todd
Tue, 07/14/2020 - 1:47pm

Gee you think? Maybe not force business owners to be the mask police too. How about calling police to do your policing? Oh wait, we want to abolish them. Liberals are idiots. I'm very happy to hear that most law enforcement will not be enforcing this draconian nonsense and that people are catching on to what the liberals are doing. Get ready for a landslide re-election win. You folks learned nothing from 2016.

2020 Big Blue Wave
Tue, 07/14/2020 - 8:59pm

Should police be arresting people for not wearing a mask or should there be a more civil way? "You folks learned nothing from 2016." Um, did you miss 2018. I think we learned a lot.

Evel Knievel
Tue, 07/14/2020 - 2:12pm

Hopefully, Sandy Baruah gets it. And then has no legal recourse & must handle it all be herself. I guess a to her a miserable death caused by a global pandemic is "frivolous"

Timothy
Tue, 07/14/2020 - 2:46pm

Even the best-prepared business is likely to be visited by people who are careless or unconcerned about following the basic guidelines. Chances are that such people will fall ill as a result. The business should not be held liable for a customer's irresponsible behavior. I hope the final version of the law(s) regarding civil liability will make it difficult for irresponsible behavior to be rewarded. On the other hand, businesses that encourage customers to behave irresponsibily because the owners allow risky behavior, that is another matter for the law to consider. I'm thinking of the businesses that are posting signs encouraging customers to claim a medical reason for not wearing masks.

Jenna
Tue, 07/14/2020 - 9:03pm

I agree, and what if employees are sick and the business let's them work anyway?

George Hagenauer
Wed, 07/15/2020 - 9:23am

The lack of consistency nationally, state wide and locally is what is driving the virus -that and the fact that it is spreading in was where some people have a lot of experience with it and others don't. And we don't know all of the long terms effects. So we are dividing again into two societies on really minor points like mask wearing and social distancing when the more unified countries like Iceland, New Zealand, Taiwan are avoiding a lot of the problems we are facing and having far less economic impacts . Businesses are really caught in the middle. I walked into a big box discount store near Ann Arbor- the customers for the most part were wearing masks, 50% of the staff weren't. End result several dozen of their customers won't be shopping there as the word gets spread. That is a lot of money lost from one bad shopping experience. The idea that people will get incensed because you choose to wear a mask to protect them and yourself is really weird but anti-mask/ etc. propaganda is actively promulgated like many things on social media. And supported by some politicians. I mean 80% of the people who get the virus in my age range die. That is not my fault and so why are you pissed off I am wearing a mask like that 77 year old who got stabbed? Likewise with a lot of people with no health care and no sick time , getting sick is not a simple thing, it drives you into poverty , disrupts your life so it is not just the people who die that is the key factor in controlling the virus it is all the other stuff that happens as a result of getting sick in America.

Lisa Ham
Sun, 07/19/2020 - 10:46am

Here's the thing. I am a nurse, I caught Covid-19 in early May. Everyone asks me "Did you catch it at work?", but the only provable answer is "I don't know. ". Sure I took care of patients with known and suspected Covid-19, yes I used proper precautions but equipment isn't perfect and yet there is no guarantee I didn't catch it while grocery shopping either.
Business should do all it can to prevent the spread but unless they are in flagrant violation of public health rules and regulations I think it's ridiculous to hold them responsible if someone catches Covid19. A person could catch it anywhere. Their are asymptomatic carriers throughout the population. That's why we should all be wearing personal masks, washing our hands, not touching our faces. Because the spread of pandemics is not something that can be wrapped up in tidy package with a failproof instruction manual.

BIG BLUE WAVE
Thu, 08/13/2020 - 10:54am

We have to shield everyone from the dunce president and his GOP enablers until January.