The Workers’ Disability Compensation Act is a state law enforced by the Workers’ Disability Compensation Agency, which is under the state Department of Labor and Economic Opportunity.
The Act is intended to provide benefits to workers whose injuries arise out of and in the course of their employment. The purpose of this brochure is to provide information and guidance to you about your legal rights and your employer’s legal obligations in the event you are diagnosed with COVID -19 by a physician or test. As discussed below, special action concerning the workers compensation law has been taken by Gov. Whitmer by issuance of Executive Orders containing Emergency Rules in order to quickly respond to the impact of COVID-19 on healthcare workers.
Background: The Emergency Rules
An Executive Order issued by Michigan Gov. Gretchen Whitmer on October 16, 2020 included certain emergency rules which are in effect until March 31, 2021. These rules clarify the Workers Compensation and Disability Act in order to respond to the unique danger faced by healthcare workers caused by the outbreak of COVID-19.
According to the emergency rules, if you are a First Response Employee, which is an employee whose job responsibilities or place of work require them to have regular or prolonged contact with COVID 19 in the course of their employment, and you are diagnosed with COVID-19 infection either by a physician or as a result of a test on or after March 18, 2020, you are presumed to have suffered a personal injury under the law, and therefore entitled to benefits under the workers compensation statute. This presumption exists unless the employer can present specific facts to the contrary.
As described above, first response employees are designated by their workplace or occupation. Employees who work in specific workplaces, including county medical care facilities, homes for the aged, hospice care, nursing homes, home health care agencies, and hospitals. First response employees also include employees who work in certain jobs, including registered professional nurses. So, if you work in a hospital, you are a first response employee. Or, if you work as a registered professional nurse you are a first response employee.
What is the Procedure to follow after testing positive for COVID-19?
The first step is to immediately contact your employer to report your positive COVID-19 diagnosis. If your employer informs you that it does not consider your diagnosis to be work related, and is going to deny your claim that you have suffered a personal injury, you have legal recourse as described below.
What is my legal recourse if my employer denies my workers compensation claim by taking the position that I have not suffered a personal injury by virtue of my COVID-19 diagnosis?
The Michigan Nurses Association is supporting its members who have been unjustly denied workers compensation. If you are an MNA member who has concerns, please email email@example.com and someone will be in contact with you about how to proceed and help you navigate through the steps detailed below.
Legal proceedings are initiated by filing Form WC-117 with the Bureau of Workers Disability Compensation. This can be done by downloading it online (all forms referred to in this informational brochure are available for downloading at https://www.michigan.gov/leo/0,5863,7-336-94422_95508—,00.html.
Cases are often settled shortly after a claim is filed but in the event there is no settlement, you or your attorney, if you choose to retain counsel, would then file Form 104(A), which is an Application for Mediation or Hearing with the bureau. If necessary, a trial will be held before a Workers Compensation Magistrate, who is a state appointed official. You can represent yourself at the trial, or retain an attorney to represent you. If you are an MNA member, your union will support you throughout this process.
An option available to the parties is that they can choose to participate in binding arbitration of the dispute by mutual agreement, thereby foregoing the procedure provided by the workers compensation law, including a trial before a magistrate.
Proceedings under the workers’ compensation statute are, with a few limited exceptions, the exclusive remedy for injured workers in Michigan. Therefore, civil lawsuits in lieu of, or in addition to, a workers’ compensation claim are precluded.
What Compensation are you entitled to under the law?
There is a seven day waiting period for workers’ compensation benefits, so that benefits commence after you have missed work for 7 days. Your employer will not owe anything if the injury causes you to miss work for 7 days or less. Benefits begin to accrue after that, but if your injury requires that you be off of work more than two weeks, you are then entitled to receive retroactive payment for the first week.
By law, you are entitled to wage loss compensation at 80% of your after-tax pay, certain fringe benefits that you would have received had you not become infected, all reasonable and necessary medical care, and any necessary rehabilitation. Workers’ compensation benefits are not taxable, but are coordinated with other money you receive from the employer, such as payment from a sickness and accident insurance benefit.
Are your workers’ compensation claims records open to the public?
In general no, but there are some exceptions, including the records of contested cases.
What other sources of paid leave can be looked at before workers’ compensation?
You can choose to take PTO, but of course that depletes your hours when taken.
Can I sue my employer for damages in addition to the workers compensation claim?
No, as stated above, workers’ compensation benefits are the exclusive remedy for a work related injury, and typically no lawsuit may be filed with respect to the injury.
What if I get COVID-19 from a co-worker and not a patient?
This is still a personal injury which arose out of and in the course of your employment, and under the special rules, you would be presumed to have suffered a personal injury (subject to rebuttal by specific facts by your employer) assuming you are a first response employee.
What if I can’t identify or prove when I was infected with COVID 19, and by whom?
As a first response employee, under the emergency rules, you enjoy the legal presumption that you were infected at work. This presumption can be challenged by your employer by providing specific facts to the contrary.
when are my worker’s compensation benefits paid?
Your first check is due and payable on the 14th day of wage loss. However, a benefit check is not considered late until 30 days after the due date.