COMMENTARY: Some 'Critical Infrastructure' remains at risk for liability

By A. Vince Colella

It has been all hands-on-deck for hospitals and health care workers since March 10, when the Michigan Department of Health and Human Services reported its first two presumptive-positive cases of the coronavirus. Since that time, Gov. Gretchen Whitmer has exercised her powers, in part, under the Emergency Management Act (EMA) issuing the controversial Executive Order 2020-21 and suspending all activities not necessary to sustaining life (universally referred to as the “Stay at Home” order) — much to the dismay of many Michigan residents. Perhaps recognizing the total chaos health care workers would face in crowded emergency and triage departments, coupled with the startling contagiousness of the virus and need for immediate countermeasures, immunizing the medical community from civil liability was of paramount importance to protect the economic stability of the industry.

According to Whitmer, the “urgent and steep demand” created “the need for as many health care professionals as possible working in whatever capacity...” thereby prompting the issuance of EO 2020-30. The Order relaxes the requirements for supervision of nurses, therapists, medical students, and unlicensed health care workers. Moreover, the order provides for immunity from civil liability. It states, “[a]ny licensed health care professional or designated health care facility that provides medical services in support of this state’s response to the COVID-19 pandemic is not liable for an injury sustained by a person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained, unless it is established that such injury or death was caused by the gross negligence.” Therefore, absent a showing of “gross negligence,” medical providers may not be held liable for their treatment of COVID-19 patients. While some may be critical of the preferential treatment given to the health care workers, the magnitude of the pandemic and residual economic pressure placed on the industry as a whole may justify the governor’s decision.

However, other industries will not be so fortunate. Restrictions placed on businesses defined as “critical infrastructure” have been loosened to allow for re-opening. Financial services, critical manufacturing, lawncare, information technology, media and certain retailers will be permitted to commence operations in the days and weeks ahead. However, under the most current order (EO 2020-70), there is no mention of immunity from civil liability. Accordingly, critical infrastructure may be susceptible to third party liability claims for damages arising from the spread and exposure to the virus. And absent a statute to the contrary, common law negligence would serve as the basis for these claims. So, what is a business owner’s duty to its customers, vendors and contractors? The answer can be found in the recommended guidelines. Michigan has been following the recommendations of the Center for Disease Control (CDC). The “playbook” can be found in EO 2020-70, which sets forth the minimum guidelines for businesses tapped for re-emergence in the post pandemic world. The recommendations include, but are not limited to:

1) Developing a COVID-19 preparedness plan consistent with the requirements promulgated by the Occupational Safety and Health Association (OSHA);

2) Restrict the number of workers present on premises to no more than is strictly necessary;

3) Keep workers and patrons who are on premises at least six feet from one another to the maximum extent possible;

4) Increase standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace; and

5) Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.

A breach of any one of the minimum recommendations could serve as the basis for a claim, as Michigan has long recognized the precept that “violations of administrative rules and regulations are evidence of negligence.” Beals v Walker, 416 Mich 469 (1982). Moreover, the executive orders may carry even more weight than a regulation. The EMA specifically states, “[T]he governor may issue executive orders, proclamations, and directives having the force and effect of law…” MCL 30.403 Therefore, a failure to comply with the minimum guidelines may be considered negligence per se. Cipri v Bellingham Frozen Foods, Inc., 235 Mich App 1 (1999) (“duty may arise from statutory obligation.”) Thus, there is compelling authority for critical infrastructure to be held liable for damages caused by its failure to adhere to the governor’s orders.

So, while we are all eager to open our doors to the public, it would be wise to carefully impose and follow the recommendations — or be prepared for an onslaught of COVID-19 related lawsuits.
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A. Vince Colella is a founding partner of Moss & Colella PC, a Southfield-based law firm specializing in personal injury and civil rights. He can be reached at vcolella@mosscolella.com.