COVID-19 and At-Will Employment: Employment Protections Under Pandemic Conditions

Rachel Westmaas, Senior Notes Editor (‘21)

Introduction

According to his complaint, Nicolas Prada started feeling ill with muscle aches and fever in late June 2020.[1] The COVID-19 pandemic just began raging through Michigan a few months earlier, and Prada responsibly sought out a COVID-19 test.[2] The test came back positive, and Prada began a two-week quarantine.[3] At the end of his quarantine, Prada contacted his employer, a noodle restaurant in Ann Arbor, Michigan, seeking to go back to work.[4] Rather than re-scheduling Prada’s shifts, Prada’s employer asked how Prada had contracted the virus.[5] After Prada indicated his uncertainty, Prada’s employer accused him of “acting irresponsibly” and promptly fired him solely for having contracted COVID-19.[6] Prada’s complaint was eventually dismissed without prejudice and with no award of attorney’s fees.[7]

The at-will employment doctrine was roundly criticized long before the COVID-19 pandemic crippled the world in early 2020.[8] However, the COVID-19 pandemic highlights yet one more reason for criticism: at-will employers firing employees who fall ill due to pandemic conditions well outside the employees’ control.[9] While some temporary protections were put in place for at-will employees during the ongoing pandemic, these protections do not go far enough to protect employees from being fired simply for contracting COVID-19.[10] Furthermore, some state laws provide incentives to fire employees who contract COVID-19 because they give employers broad state law immunity for doing so.[11] Therefore, the COVID-19 pandemic presents yet another argument for recalibration of the at-will doctrine, entailing an extension of employment protections for employees who get sick.[12]

I. Existing Employee Protections in a COVID World

The at-will employment rule is not absolute and has some exceptions from before the COVID-19 pandemic, including the public policy exception, the Americans with Disabilities Act (ADA), and the Occupational Health and Safety Act (OSHA).[13] Additionally, as a result of the pandemic, federal lawmakers passed the Families First Coronavirus Response Act (FFCRA), which contained some additional protections for employees in the pandemic context.[14] State lawmakers have also entered the discussion where they felt federal lawmakers fell short.[15] Even though each of these protections have some impact on employees during the COVID-19 pandemic, each one is limited in some way, and none protect an employee from being fired solely for contracting COVID-19.

First, the public policy exception provides that employers are limited from firing employees when doing so would violate some stated public policy.[16] Generally, courts require the public policy in question to be clearly stated by state or federal statutes, administrative rules, judicial decisions, or, in some cases, a professional code of ethics.[17] In the COVID-19 context, the public policy exception could apply, for example, when an employer terminates an employee for the employee’s refusal to violate a state stay at home order.[18] Additionally, in Warner v. United Natural Foods, Inc., the plaintiff claimed the public policy exception applied after he was fired for reporting his employer’s insufficient efforts to sanitize the workplace.[19] The district court dismissed Warner’s complaint, however, finding that the state governor’s emergency executive order was not enough to establish a public policy against his firing.[20]

The ADA also provides some protections for employees from adverse employment actions allowed under strictly at-will employment.[21] Generally, the ADA prohibits covered employers from discriminating against employees or potential employees on the basis of a disability.[22] The ADA also requires that employers make “reasonable accommodations” for employees with disabilities.[23] In the COVID-19 context, the ADA may protect employees who are highly susceptible to the virus or who have pre-existing conditions that would make catching the virus particularly harmful.[24] For example, in Peeples v. Clinical Support Options, Inc., an employer refused to allow an employee with asthma to work from home after the COVID-19 pandemic hit in  Massachusetts.[25] The employer also refused to provide employees with protective and cleaning equipment and did not require employees to wear masks.[26] The district court held that the plaintiff was likely to prevail on the merits of the ADA claim for failure of the employer to make reasonable accommodations regarding the plaintiff’s asthma.[27] The court granted a preliminary injunction against the employer, requiring the employer to allow the plaintiff to work from home as a reasonable accommodation under the ADA.[28] Although this protection was granted in Peeples, other employees who do not have pre-existing conditions or whose employers do not have fifteen or more employees would not be able to obtain relief under the ADA.[29]

A third source of employee protection in the COVID-19 context is OSHA.[30] OSHA generally requires that employers provide a workplace that is “free from hazards.”[31] OSHA regulations protect the right of workers to refuse work due to imminent danger to their health or safety when there is no less drastic alternative available.[32] In Palmer v. Amazon.Com, Inc., employees at an Amazon warehouse in New York sued Amazon under a New York state employee health and safety law somewhat analogous to OSHA.[33] The employees alleged that Amazon failed to protect their health and safety in the warehouse by counting time in the bathroom against employee productivity, which discouraged thorough handwashing; by failing to adequately contract trace after employees contracted the virus; and by providing only two air-conditioned rooms for a warehouse of thousands of employees, which encouraged employees to gather in those rooms on hot days and violate social distancing guidelines.[34] The court declined to hear the plaintiffs’ claims, referred the plaintiffs to the Occupational Safety and Health Administration, and required them to file a complaint with the agency instead.[35]

Although OSHA may seem to provide a promising avenue for employee protections in a pandemic era, the protections of the Act are limited.[36] For instance, there is no private right of action under OSHA.[37] Instead, employees who suffer a violation of OSHA must file a complaint with the Department of Labor and leave the fate of their allegations solely in the hands of government officials.[38] The Secretary of Labor has discretion not to pursue complaints of dangerous workplaces and may exercise that discretion more often depending on his or her political persuasion.[39] Although state health and safety laws might help fill the gaps where OSHA falls short, the Palmer case demonstrates that courts are often willing to defer state law claims to the federal agency because of the agency’s expertise on the matter.[40] Even if OSHA was more heavily enforced, it provides no protection for employees who have already contracted COVID-19 and very little protection for whistleblowers who fear that an employer’s weak workplace protections will cause them to contract the virus.[41]

Another source of employee protection under pandemic conditions is the FFCRA.[42] Congress passed the FFCRA in 2020 specifically to deal with various legal issues derived from the COVID-19 pandemic.[43] The FFCRA provided that covered workers were entitled to up to two weeks of paid sick time if they experienced Covid symptoms or were subject to a quarantine order.[44] Furthermore, the Act prohibited employers from discharging employees for taking advantage of any protections provided under its terms.[45] However, the FFCRA’s protections were still limited.[46] The paid leave entitlement expired under its own terms on December 31, 2020.[47] Additionally, even while it was in force, the FFCRA’s paid sick time provisions were limited to public employers and private employers fewer than 500 employees.[48] Thus, while the FFCRA appeared to apply some protections for employees who contracted COVID-19 by requiring paid sick leave rather than termination, the Act was limited in both time and scope.[49]

Finally, some states have implemented state law protections for employees during the COVID-19 pandemic as well.[50] For example, Michigan has enacted the Employment Rights Act, which prohibits employers from firing employees due to their refusal to report to work after experiencing symptoms of COVID-19.[51] Many other states have implemented worker safety laws with specific requirements for employees to provide safe workplaces during the duration of the pandemic.[52] However, while the subject of workplace safety requirements tends to be well covered by state laws, protections against firing an employee for getting ill are few and far between.[53] Instead, a trend of states adopting protections for employers has emerged.[54]

II. Broad State Law Protections for Employers

While some states have implemented state law protections for employees, many have also considered or enacted broad employer protections as well.[55] Michigan is an example of a state that has enacted employee protections but broad employer immunity from suit over COVID-19 issues.[56] Specifically, Michigan law provides that employers who comply with federal, state, and local laws and regulations are immune from claims resulting from COVID-19-related issues.[57] The scope of employer immunity that Michigan provides is broad.[58] An employer is immune from any COVID-19 claim, including claims arising from any “[c]onduct intended to reduce transmission” of the virus.[59] The immunity applies to any tort claim, whether brought by the injured individual or representative, and it covers any “relief arising out of, based on, or in any way related to exposure or potential exposure” to COVID-19.[60] Although passed in October 2020, the Michigan act also applies retroactively to any and all claims arising after March 1, 2020.[61] The singular limitation on the breadth of this immunity is that it does not protect employers from civil actions or administrative proceedings brought by the state itself.[62]

III. Both Federal and State Congresses Should Provide Protections for Vulnerable Employees Who Fall Ill with COVID-19

Nicolas Prada alleged that he was fired from his employment for one reason well outside his control: contracting COVID-19.[63] While current employment law provides some protections for employees in the midst of a pandemic, none of the current employee protections in Michigan went far enough to protect Prada for getting fired after getting sick.[64] In fact, rather than protecting employees who rely on their jobs to feed themselves, especially during difficult economic times, current Michigan employment law encourages employers to fire employees for contracting COVID-19 by providing employers with immunity.[65] Therefore, the COVID-19 pandemic presents yet another area where an exception to the employment at-will doctrine is necessary. Furthermore, states like Michigan that have granted broad immunity to employers should roll back that immunity and protect employees who contract COVID-19.

While employment at-will has been the default rule in American employment for many years, there are already several exceptions to this rule, including the public policy exception and statutory exceptions like ADA, OSHA, and FFCRA.[66] These exceptions simply do not go far enough to protect employees in the pandemic context.[67] Congress has already recognized, in policy and purposes behind the ADA, that employees should not be subject to adverse employment actions due to health conditions outside their control.[68] This policy argument applies equally to employees under pandemic conditions because even people who act responsibly cannot always avoid contracting a highly contagious virus that has spread worldwide.[69] Furthermore, while the ADA, OSHA, and FFCRA each have some application to employees under pandemic conditions, each act is limited in some way that prevents it from protecting employees from getting fired for getting sick.[70] While the public policy exception to the at-will doctrine could apply, most courts require that plaintiffs show a clear mandate from a statute, regulation, or judicial opinion to apply the public policy exception.[71] In most cases, there simply is no such statute, regulation, or judicial opinion in existence due to the relative newness of the pandemic.[72]

Furthermore, many employees experiencing pandemic conditions need employment protections.[73] Prada, for example, was a fairly low-wage manager at a noodle restaurant when he was fired for getting ill with COVID-19.[74] Statistics show that restaurant employees, like Prada, are already vulnerable to layoffs and job displacement due to the pandemic’s impact on the economy.[75] Furthermore, many workers in positions like Prada do not have savings to fall back on or an ability to independently pay for health insurance if they are terminated for getting ill.[76] This vulnerability means that if these employees lose their jobs, especially while sick or recovering, they will almost certainly run into financial trouble and be forced to rely on public assistance to survive.[77]

Therefore, Congress should prevent employers from firing employees solely or substantially because they contracted an illness like COVID-19. Congress should explicitly provide that employers who fire employees for getting ill will be liable for continued pay and benefits to their former employees for a reasonable period of time or until the employee can secure a new position.[78] Congress could achieve this solution in one of two ways. First, Congress could provide these employment protections by defining COVID-19 as a disability under the ADA and providing that any employer who fires an employee for contracting the virus violates that Act.[79] A second option would be for Congress to extend the FFCRA and provide that employers must provide paid sick leave to employees who contract the virus until the United States reaches a specified level of vaccine coverage.[80] Congress could further specify that any employer who terminates an employee rather than providing the necessary sick leave would violate the Act and be subject to damages.[81]

 Finally, although congressional action on this matter would clarify federal law and help protect vulnerable employees, states that have enacted broad immunity for employers during COVID-19 should roll back that immunity and provide additional protections to employees.[82] Michigan’s immunity statute, for example, is breathtakingly overbroad.[83] It provides employers with immunity for any action “intended to reduce transmission” of the virus. [84] In cases like Prada’s, employers will easily fall within the protections of Michigan’s statute by arguing that they fired an employee who was ill with COVID-19 as a means of potentially protecting other employees or customers.[85] Employers simply need to make the minimal showing that their intent was to reduce even potential exposure to the virus, and they obtain open-ended immunity from any and all tort claims, including wrongful discharge claims.[86] There is no requirement to show that the employer acted to prevent an actual risk of exposure nor that the employer’s action actually protected anyone from getting ill.[87] Michigan’s employer immunity statute therefore has the perverse effect of encouraging employers to discharge employees who contract COVID-19 because they may do so with impunity. Because of this perverse effect, Michigan and other states with similarly overbroad employment immunity statutes should roll these statutes back and provide that employers cannot fire employees for simply contracting COVID-19.

Conclusion

 The COVID-19 pandemic has created difficult financial situations for many, and low wage employees are especially vulnerable.[88] Nicolas Prada’s situation was made even worse when he was fired solely for contracting the virus that has rampaged across the globe.[89] The current employment at-will default rule allows for employees, like Prada, to be fired for getting sick even when the circumstances causing the disease, like a global pandemic, are well beyond their control. Although there are some exceptions to the at-will doctrine, none explicitly reach Prada’s situation, and many states, like Michigan, have legislated in the wrong direction by providing employers with overbroad immunity as it relates to COVID-19.[90] Legislatures at the federal and state level should address this issue by ensuring employers face liability when they fire employees for contracting COVID-19 and thereby protecting those employees who need it most during these difficult times.

******

[1] See Complaint & Jury Demand at 3, Prada v. Trifecta Prods., LLC, No. 20-cv-12348 (E.D. Mich. Aug. 28, 2020).

[2] See id. at 4.

[3] See id.

[4] See id.  

[5] See id.

[6] See id. at 4–5.

[7] See Stipulated Order of Dismissal with Prejudice at 1, Prada v. Trifecta Prods., LLC, No. 20-cv-12348 (E.D. Mich. Aug. 28, 2020).

[8] See Lawrence E. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1405 (1967) (“This traditional [at-will employment] rule, which forces the non-union employee to rely on the whim of his employer for preservation of his livelihood, is what most tends to make him a docile follower of his employer's every wish.”); see also Jason P. Lemons, For Any Reason or No Reason at All: Reconciling Employment at Will with the Rights of Texas Workers After Mission Petroleum Carriers, Inc. v. Solomon, 35 St. Mary’s L.J. 741, 744 n.17 (2004) (gathering academic criticisms of the at-will employment doctrine).

[9] See, e.g., Complaint & Jury Demand, supra note 1, at 5.

[10] See, e.g., Families First Coronavirus Response Act, Pub. L. No. 116-127, § 3102 (2020) (providing that employers with fewer than 500 employees must allow workers to take twelve weeks of leave to care for children whose schools are closed but only effective through December 31, 2020); see also Families First Coronavirus Response Act, Pub. L. No. 116-127, § 5102 (2020) (providing that full time employees are entitled to eighty hours of paid sick leave if they are subject to a quarantine order or advisory but only effective through December 31, 2020 and containing a discretionary exception for employers with fewer than fifty employees).

[11] See, e.g., Mich. Comp. Laws § 691.1452 (2020) (defining “[c]onduct intended to reduce transmission of COVID-19” as including any actions “intended to reduce transmission of COVID-19 in a workplace or on other premises”); see also Mich. Comp. Laws § 691.1455 (2020) (providing that any person who acts in compliance with federal, state, and local law is “immune from liability for a COVID-19 claim”).

[12] See infra Part III.

[13] See Diberardinis-Mason v. Super Fresh, 94 F. Supp. 2d 626, 629 (E.D. Pa. 2000) (noting that in Pennsylvania, the public policy exception to the at-will employment doctrine forbids an employer from firing an employee for refusing to commit a crime, for complying with statutory duties, and when a statute otherwise forbids termination); Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq.; Occupational Safety and Health Act, 29 U.S.C. § 651 et. seq. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (discussing Title VII’s limitations on employers to fire employees for any reason at all).

[14] See Families First Coronavirus Response Act, Pub. L. No. 116-127, §§ 3102, 5102 (2020).

[15] See Deborah Berkowitz, Which States and Cities Have Adopted Comprehensive Covid-19 Worker Protections?, Nat’l Emp. L. Project (Dec. 21, 2020), https://www.nelp.org/blog/which-states-cities-have-adopted-comprehensive-covid-19-worker-protections/ (listing fourteen states that have adopted comprehensive worker protections).

[16] See Nees v. Hocks, 536 P.2d 512, 515–16 (Or. 1975) (holding that an employer was subject to damages for discharging an employee who was called to jury duty).

[17] See Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 512 (N.J. 1980) (“We hold that an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy.”).

[18] See E.A. Gjelten, Were You Fired Illegally During the Covid-19 Pandemic?, AllLaw, https://www.alllaw.com/articles/personal-injury/wrongful-termination-covid-19.html (last visited Mar. 21, 2021) (suggesting that discharge for refusal to violate a stay-at-home order could fall within the public policy exception).

[19] See Warner v. United Natural Foods, Inc., 1:20-cv-1758, 2021 WL 120844, at *4 (M.D. Penn. Jan. 13, 2021) (finding the public policy exception to the at-will doctrine does not apply to an employee who was fired after he reported employer’s lackluster efforts to sanitize the workspace in response to the state law requirements).

[20] See id.

[21] See Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq.

[22] See id. § 12112(a).

[23] See id. § 12112(b)(5).

[24] See Peeples v. Clinical Support Options, Inc., No. 3:20-cv-31044-KAR, 2020 U.S. Dist. LEXIS 169167, at *18 (D. Mass. Sept. 16, 2020).

[25] See id. at *2–5.

[26] See id. at *3–4.

[27] See id. at *18.

[28] See id.

[29] See 42 U.S.C. § 12111 (defining “employer” as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year”).

[30] See Occupational Safety and Health Act, 29 U.S.C. § 651 et. seq. 

[31] See id. § 654(a)(1).

[32] See Whirlpool Corp. v. Marshall, 445 U.S. 1, 10–12 (1980) (holding that employees could, under regulations promulgated pursuant to OSHA, refuse to work due to seriously dangerous conditions when there was no time to notify OSHA of the danger).

[33] See Palmer v. Amazon.Com, Inc., 20-cv-2468 (BMC), 2020 U.S. Dist. LEXIS 203683, at *7 (E.D.N.Y. Nov. 2, 2020).

[34] See id. at *8–9.

[35] See id. at *19.

[36] See Stephen M. Kohn, Can OSHA Protect Coronavirus Whisteblowers?, Nat’l L. Rev. (Apr. 21, 2020), https://www.natlawreview.com/article/can-osha-protect-coronavirus-whistleblowers#:~:text=Unlike%20all%20other%20modern%20whistleblower,their%20own%20cases%20in%20court.

[37] See id.

[38] See id.

[39] See id.

[40] See id.; see also Palmer, 20-cv-2468 (BMC), 2020 U.S. Dist. LEXIS 203683, at *15–16 (citing OSHA’s expertise as a reason to refer the plaintiff’s case to the federal agency).

[41] See Kohn, supra note 36 (describing OSHA’s whistleblower protections as “dysfunctional” and “terrible”).

[42] See Families First Coronavirus Response Act, Pub. L. No. 116-127, §§ 3102, 5102 (2020).

[43] See id.

[44] See id. § 5102.

[45] See id. § 5104.

[46] See id. § 5109.

[47] See id.

[48] See id. § 5110(1)(B).

[49] See id. §§ 5109, 5110(1)(B).

[50] See, e.g., Mich. Comp. Laws § 419.403 (2020).

[51] See id.

[52] See Berkowitz, supra note 15 (listing fourteen states that have adopted comprehensive worker protections).

[53] See id.

[54] See More States Consider Covid-19 Immunity Laws as Employment Lawsuit Filings Trend Upward, JDSupra (Mar. 10, 2021), https://www.jdsupra.com/legalnews/more-states-consider-covid-19-immunity-1529789/.

[55] See id. (noting that over twelve states have enacted broad employer immunity from suits due to COVID-19 and several more are considering doing the same).

[56] See Mich. Comp. Laws. §§ 419.403, 691.1452, 691.1455 (2020).

[57] See id. § 691.1455 (“A person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm is immune from liability for a COVID-19 claim. An isolated, de minimis deviation from strict compliance with such statutes, rules, regulations, executive orders, and agency orders unrelated to the plaintiff's injuries does not deny a person the immunity provided in this section.”).

[58] See id. § 691.1452.

[59] See id.

[60] See id.

[61] See id. § 691.1460.

[62] See id. § 691.1458.

[63] See Complaint & Jury Demand at 4–5, Prada v. Trifecta Prods., LLC, No. 20-cv-12348 (E.D. Mich. Aug. 28, 2020).

[64] See Stipulated Order of Dismissal with Prejudice at 1, Prada v. Trifecta Prods., LLC, No. 20-cv-12348 (E.D. Mich. Aug. 28, 2020) (dismissing Prada’s case with prejudice and with no award of attorney’s fees but without stating further reasons for the dismissal).

[65] See Mich. Comp. Laws § 691.1455 (providing employers with immunity for any actions undertaken to reduce transmission of COVID-19).

[66] See Diberardinis-Mason v. Super Fresh, 94 F. Supp. 2d 626, 629 (E.D. Pa. 2000) (describing the public policy exception under Pennsylvania law); Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq.; Occupational Safety and Health Act, 29 U.S.C. § 651 et. seq.; Families First Coronavirus Response Act, Pub. L. No. 116-127, § 5102 (2020).

[67] See supra Part I.

[68] See 42 U.S.C. § 12101(a)(8) (recognizing that discrimination against people with mental and physical conditions outside their control is “unfair and unnecessary discrimination”).

[69] See Sarah Kaplan, William Wan & Joel Achenbach, The Coronavirus Isn’t Alive. That’s Why It’s So Hard to Kill., Wash. Post (Mar. 23, 2020, 11:36 am), https://www.washingtonpost.com/health/2020/03/23/coronavirus-isnt-alive-thats-why-its-so-hard-kill/ (“There is a certain evil genius to how this coronavirus pathogen works: It finds easy purchase in humans without them knowing. Before its first host even develops symptoms, it is already spreading its replicas everywhere, moving onto its next victim.”).

[70] See supra Part I.

[71] See Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 512 (N.J. 1980) (holding that positive law is required to show that a public policy exception to the at-will doctrine exists); Warner v. United Nat. Foods, Inc., 1:20-cv-1758, 2021 WL 120844, at *4 (M.D. Penn. Jan. 13, 2021) (holding that the public policy exception did not protect an employee fired after reporting his employer’s failure to provide COVID-19 protective equipment because an executive order was not sufficient to establish the public policy in this context).

[72] See Warner, 1:20-cv-1758, 2021 WL 120844, at *4.

[73] See Alan Berube & Nicole Bateman, Who Are the Workers Already Impacted by the Covid-19 Recession?, Brookings (Apr. 3, 2020), https://www.brookings.edu/research/who-are-the-workers-already-impacted-by-the-covid-19-recession/.

[74] See Complaint & Jury Demand at 6, Prada v. Trifecta Prods., LLC, No. 20-cv-12348 (E.D. Mich. Aug. 28, 2020).

[75] See Berube & Bateman, supra note 73 (noting that the nearly 10 million employees in the service industry are “vulnerable workers” subject to potential layoffs due to a COVID-19-related recession).

[76] See id. (describing rent and health insurance as potentially unaffordable costs for vulnerable workers who could potentially get laid off due to COVID-19).

[77] See id. (“The lower earnings and family incomes of vulnerable workers mean that many of them already struggled to get by before the current crisis.”).

[78] Cf. Traxler v. Multnomah County, 596 F.3d 1007, 1012, 1015 (9th Cir. 2010) (awarding front pay under the Family and Medical Leave Act as an equitable substitute for reinstatement and calculating the amount based on the reasonable amount of time it would take the plaintiff to obtain new work).

[79] Cf. 42 U.S.C. § 12112 (providing, under the current ADA, that employers who discriminate on the basis of disability in termination decisions are in violation of the Act).

[80] Contra Families First Coronavirus Response Act, Pub. L. No. 116-127, §§ 5110(1)(B) (2020) (providing, in the current FFCRA, that the Act expires on December 31, 2020).

[81] Cf. id. § 5102 (providing, under the current FFCRA, that employers were liable for terminating employees who sought benefits under the Act).

[82] Contra Mich. Comp. Laws § 691.1455.

[83] See id. § 691.1452.

[84] See id. §§ 691.1452, 691.1455, 691.1458, 691.1460

[85] See id. § 691.1452.

[86] See id. § 691.1452(c) (“‘COVID-19 claim’ means a tort claim or tort cause of action for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to exposure or potential exposure to COVID-19, or to conduct intended to reduce transmission of COVID-19. COVID-19 claim also includes a tort claim made by or on behalf of an individual who has been exposed or potentially exposed to COVID-19, or any representative, spouse, parent, child, member of the same household, or other relative of the individual, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or other losses allegedly caused by the individual's exposure or potential exposure to COVID-19. COVID-19 claim does not include an administrative proceeding or civil action brought by a state or local government prosecutor or agency to enforce state statutes and regulations, executive orders, or state agency orders applicable to COVID-19.”).

[87] See id.

[88] See Berube & Bateman, supra note 73.

[89] See Complaint & Jury Demand at 6, Prada v. Trifecta Prods., LLC, No. 20-cv-12348 (E.D. Mich. Aug. 28, 2020).

[90] See supra Parts I, II.