SENATE BILL NO. 1198
October 13, 2020, Introduced by Senator HOLLIER
and referred to the Committee on Economic and Small Business Development.
the people of the state of michigan enact:
Sec. 1. This act shall be known and may be cited as the "COVID-19 liability safe harbor act".
(a) "COVID-19" means the disease caused by SARS-CoV-2, and includes conditions associated with the disease.
(b) "Disinfecting or cleaning supplies" includes, but is not limited to, hand sanitizers manufactured in a manner consistent with United States Food and Drug Administration industry guidance, disinfectants, sprays, and wipes, if the supplies meet any applicable United States Environmental Protection Agency criteria for use against COVID-19.
(c) "Minimum medical condition" means any of the following:
(i) A positive diagnosis of COVID-19, or symptoms consistent with COVID-19, that required inpatient hospitalization of at least 24 hours.
(ii) A medical illness or physical injury or condition caused by COVID-19 that results in the inability to engage in an individual's usual and customary daily activities for at least 14 days, which does not include any period that the individual is in quarantine to slow the spread of COVID-19.
(iii) Death attributed to COVID-19.
(d) "Nonprofit charitable organization" means an organization granted tax exempt status by the Internal Revenue Service, if no part of the organization's net earnings inure to the benefit of a private shareholder or individual.
(e) "Person" means an individual, partnership, corporation, association, or other legal entity, including, but not limited to, a school, a college or university, an institution of higher education, and a nonprofit charitable organization. Person includes an employee, agent, or independent contractor of the person, regardless of whether the individual is paid or an unpaid volunteer.
(f) "Personal protective equipment" means coveralls, face shields, gloves, gowns, masks, respirators, or other equipment used to protect an individual from infection or illness or the spread of infection or illness.
(g) "Product liability claim" means an action based on a legal or equitable theory of liability brought for the death of an individual or for injury to an individual or damage to property caused by or resulting from the production of a product.
(h) "Qualified product" means personal protective equipment used to protect the wearer from COVID-19 or the spread of COVID-19 or SARS-CoV-2; medical devices, equipment, and supplies used to treat COVID-19 or prevent the spread of COVID-19 or SARS-CoV-2; medications used to treat COVID-19 including medications prescribed or dispensed for off-label use to attempt to combat COVID-19; tests to diagnose or determine immunity to COVID-19 or SARS-CoV-2; disinfecting or cleaning supplies; and components of qualified products.
(i) "SARS-CoV-2" means the SARS-CoV-2 virus, also known as the novel coronavirus, or a virus that mutates from that virus.
Sec. 3. (1) In a civil action in which a person is alleged to be liable for damages, losses, indemnification, contribution, or other relief arising out of exposure or potential exposure to COVID-19 or SARS-CoV-2, there is a presumption that the person is not liable only if all of the following apply:
(a) The person was in compliance with all statutes, regulations, rules, and other forms of guidance pertaining to COVID-19 or SARS-CoV-2 issued by the federal government, the government of this state, or a local unit of government at the time that the exposure to COVID-19 or SARS-CoV-2 is alleged in the civil action to have occurred. If there is a conflict between different applicable requirements, the person must follow the strictest requirements.
(b) The person allows employees of the person who have confirmed or suspected cases of COVID-19 to return to the workplace only after the employees are no longer infectious according to the latest guidelines from the Centers for Disease Control and Prevention and are released from any quarantine or isolation recommended by a local public health department.
(c) The person does not discharge, discipline, or otherwise retaliate against employees of the person who stay home or who leave work when they are at particular risk of infecting others with COVID-19 or SARS-CoV-2.
(d) The person provides an employee who stays home or leaves work when they are at particular risk of infecting others with COVID-19 or SARS-CoV-2 the ability to work from home or provides annual bank of paid leave time that employees can use if they have a confirmed or suspected case of COVID-19. To the extent that the employee has no paid leave, the leave may be unpaid.
(2) To overcome a presumption under subsection (1), a plaintiff has the burden of presenting clear and convincing evidence that all of the following apply:
(a) The statutes, regulations, and rules, and other forms of guidance, of the federal government, of this state, and of a local unit of government that were applicable at the time to the conduct or risk that allegedly caused harm were inadequate to protect the public from exposure to COVID-19 or SARS-CoV-2 based on scientific knowledge available at that time.
(b) A reasonable person would have implemented specific policies or practices to protect others from exposure to COVID-19 or SARS-CoV-2 exceeding those required or recommended by the federal government, state government, or a local unit of government that are applicable at the time to the conduct or risk that allegedly caused harm.
(c) Had the person adopted specific policies or practices exceeding those required or recommended by the federal government, state government, or a local unit of government the plaintiff would not have contracted COVID-19.
(d) The plaintiff developed or sustained a minimum medical condition.
(3) The presumption provided by subsection (1) does not apply to a deliberate act intended to cause harm.
Sec. 4. (1) Except as provided by subsection (3), a person that designs, manufactures, labels, sells, distributes, provides insurance coverage for, or donates a qualified product in response to COVID-19 or SARS-CoV-2 is not liable in a civil action that alleges a product liability claim related to the qualified product.
(2) Except as provided by subsection (3), a person that selects or dispenses a qualified product in response to the COVID-19 pandemic is not liable in a civil action for injuries or damages claimed to have arisen from the selection, dispensation, or use of the qualified product.
(3) The limitations on liability provided in this section do not apply if a person had actual knowledge that the product was defective and that there was a substantial likelihood that the defect would cause the injury that is the basis of the action, and the person willfully disregarded that knowledge in the manufacture, distribution, sale, or donation of the product.
Sec. 5. This act does not do any of the following:
(a) Create, recognize, or ratify a claim or cause of action of any kind.
(b) Eliminate a required element of any claim, including, but not limited to, causation and proximate cause elements.
(c) Apply to or in any way limit or abridge any claims, rights, remedies, or protections under the worker's disability compensation act of 1969, 1969 PA 317, MCL 418.101 to 418.941.
(d) Amend, repeal, alter, or affect any other immunity or limitation of liability.
Sec. 6. As provided by section 5 of 1846 RS 1, MCL 8.5, the provisions of this act are severable. If any portion of this act or the application of this act to any person or circumstances is found to be invalid by a court, the invalidity will not affect, impair, or invalidate the other portions or applications of this act that can be given effect without the invalid portion or application.
Sec. 7. The liability protection provided by this act applies retroactively and applies only after March 9, 2020 and before July 15, 2020.