Month: February 2022

Despite Supreme Court Vaccine Mandate Defeat, OSHA Still has Authority to Regulate COVID-19 Workplace Safety

The major headlines about the Occupational Safety and Health Administration (OSHA) and COVID-19 over the last few weeks have all been focused on the fact that on January 13, 2022, the United States Supreme Court blocked OSHA’s vaccine mandate for employers with 100-plus employees. On January 25, 2022, OSHA officially withdrew the mandate.

But that doesn’t mean that OSHA has no role in enforcing workplace safety in connection with COVID-19. A stark reminder of OSHA’s enduring enforcement powers is a recent case in which significant fines were proposed by OSHA against an Ohio-based auto supplier because it failed to follow its own policies and federal guidance related to COVID-19 health and safety protocols.

OSHA’s Investigation and Allegations

According to a January 14, 2022, news release from OSHA, a complaint was lodged against the auto supplier alleging that it ignored guidelines to limit employee exposure to COVID-19 and that several employees became sick. OSHA then launched an investigation.

During its first inspection of the facility, OSHA found that 65 employees had tested positive for COVID-19. A few days later, 88 had tested positive. Five employees were hospitalized and two died, and OSHA determined that at least one of the deaths was work-related.

While investigators determined that the company issued a corporate-wide social distancing policy in March 2020 and trained employees in May 2020 on precautions for returning to work that included social distancing and mask wearing, OSHA found that the company did not adhere to these policies during the COVID-19 outbreak and OSHA inspection.

OSHA cited the company and proposed penalties of $26,527.

Implication for Employers

Given that we have now been dealing with the COVID-19 pandemic for two years, employers (and their employees) are understandably fatigued and finding it difficult to remain vigilant in terms of maintaining COVID-19 safety protocols. Many welcomed the Supreme Court’s ruling blocking OSHA from enforcing its large employer vaccine mandate. However, it’s important for employers to remember that OSHA—as well as other federal, state and local regulatory authorities—are still investigating violations of safety protocols, and levying penalties when appropriate.

Indeed, as demonstrated by the Ohio auto supplier case described above, OSHA still has the authority to regulate workplace safety—notwithstanding the Supreme Court’s ruling. OSHA’s authority derives from several provisions of federal law, including 29 C.F.R. § 1910.132-140 (Personal Protective Equipment), 29 C.F.R. § 1904 (Recording and Reporting Occupational Injuries and Illnesses), and 29 U.S.C.A. § 654 (General Duty Clause).

Accordingly, vigilance remains essential. If your business hasn’t audited its COVID-19 protocol compliance recently, or is uncertain of its obligations, please contact your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Lauren  D.  Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

Michigan Law Imposes New Product Liability Insurance Requirements on Legal Cannabis Licensees

At the end of 2021, the Michigan legislature passed and Governor Whitmer signed into law a new cannabis liability insurance law that mandates proof of product liability insurance coverage for licensed cannabis businesses and new applicants. The new rules take effect March 30, 2022.

Michigan Senate Bill 461 (Public Act 160 of 2021) requires every licensee or applicant to file with the Michigan Marijuana Regulatory Authority (MRA): “[P]roof of financial responsibility for liability for bodily injury to lawful users resulting from the manufacture, distribution, transportation, or sale of adulterated marihuana or adulterated marihuana-infused product in an amount not less than $100,000.00 for each license.”

The statute defines “adulterated marihuana” as “a product sold as marihuana that contains any unintended substance or chemical or biological matter other than marihuana that causes adverse reaction after ingestion or consumption.”

Additional requirements include:

  • The insurance policy is issued by a licensed insurance company or licensed captive insurance company in Michigan.
  • The insurance policy does not include a provision relieving an insurer from liability for payment of any claim for which the insured may be held liable under the act.
  • Covers bodily injuries to a qualifying patient, including injuries that are caused by the intentional conduct of the licensee (but not if the licensee acted with the intent to harm).

In addition, a licensee must file an “attestation of compliance” with the requirements of the statute with the MRA, on a form approved by the MRA, which is signed by the officer of the licensed insurance company or licensed captive insurance company that issues the policy.

To the extent a licensee fails to maintain proof of financial responsibility as required under statute, the MRA will immediately suspend the licensee’s license until such proof is provided. A licensee also cannot cancel required liability insurance unless the licensee gives the MRA 30 days’ prior written notice and procures new proof of financial responsibility and delivers that proof to the MRA within 30 days after giving notice.

Given that this law takes effect on March 30, 2022, it is important for existing licensees and applicants to move fast in order to meet its requirements. For questions or assistance, please contact Paul Mallon or your Fraser Trebilcock attorney.

mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043. 

The Importance of Uninsured/Underinsured Motorist Coverage in Michigan

Michigan’s auto insurance law requires drivers/owners of motor vehicles operated on Michigan streets/roads to carry three types of coverage: Personal injury protection (PIP) for medical expenses/work loss, property protection, and residual bodily injury and property damage liability. While these coverages are mandatory, you should also consider purchasing uninsured and underinsured motorist insurance coverage. You may already have this coverage, but if you are not sure, it is recommended that you contact your insurance agent and discuss these coverages.

Why is Uninsured/Underinsured Motorist Insurance a Good Idea?

Unfortunately, it is a fact of life that there are uninsured drivers everywhere. When individuals or families struggle financially, auto insurance may be one of the bills they can’t afford to pay. They think or hope they can get away without it by avoiding getting pulled over or being involved in a crash.

The Insurance Research Council (IRC) found one in eight U.S. drivers were uninsured in 2019. The rate of uninsured drivers varies significantly from one state to the next. For example, while 3.1% of New Jersey drivers were uninsured, 29.4% of Mississippi drivers lacked auto insurance.

Michigan’s rate of uninsured drivers fell 10.1 percentage points between 2015 and ’19, according to the IRC. Yet, 25.5% of Michigan drivers were still uninsured in 2019.

Michigan changed its auto insurance laws, and the new requirements went into effect July 1, 2020. However, we don’t know yet whether those changes, especially the opportunity to pay reduced premiums, will lower the rate of uninsured drivers.

Uninsured motorist coverage is helpful if one of the many uninsured drivers causes a crash and you or a family member is injured or worse. Uninsured motorist insurance helps you when the other driver failed to do what the law requires: purchase automobile insurance coverage. The purchase of underinsured motorist coverage is important to consider as well.

What is the Difference Between Uninsured and Underinsured Motorist Coverage?

Underinsured motorist coverage provides you and your family protection when an at-fault driver causes injury or death, but has purchased an inadequate level of liability coverage. At present, an owner of a vehicle need purchase only $100,000 of liability coverage. Underinsured motorist coverage will make up the difference between what the at-fault driver’s insurance provides and the measure of your or your family member’s damages. In other words, underinsured motorist coverage covers the “gap” between the available coverage from the at-fault driver and your damages. Note: You must purchase underinsured motorist coverage at a level in excess of $100,000 or the coverage becomes “illusory” because if the at-fault driver is insured he/she must have had at least $100,000 of liability insurance. Thus, if you purchase only $100,000 of underinsured motorist coverage, there will be no “gap.” You will end up paying a premium when there is no real coverage.

Does Michigan Require Uninsured/Underinsured Motorist Coverage?

As stated above, Michigan does not require drivers to carry uninsured or underinsured motorist coverage. It’s entirely optional. It’s simply another way to protect yourself, given its relatively inexpensive premium for the coverage; it is a recommended optional coverage.

When Does Uninsured/Underinsured Coverage Apply to a Crash?

To use uninsured motorist insurance, you’ll have to show:

  • You were not more at fault in causing the accident than the other driver, and
  • The at-fault driver doesn’t have liability insurance, or
  • You were a victim of a hit and run.

To use your underinsured motorist insurance, you’ll have to show:

  • You were not more at fault in causing the accident than the other driver, and
  • You or your family member recovers the maximum benefits possible under the at-fault driver’s policy, and
  • The at-fault driver’s insurance policy is inadequate to compensate for your or your family’s damages.

In either case, you’ll have to give your uninsured/underinsured motorist insurance provider reasonable notice of your claim. How long you have to tell the company depends on your policy’s language. Do not wait, or delay. Good advice – contact an attorney that specializes in no-fault automobile insurance law soon after your or your family member’s accident.

When Can an Insurer Deny an Uninsured/Underinsured Motorist Claim?

Uninsured/underinsured coverage replaces the other driver’s liability insurance, or lack thereof. If you were the primary cause of the crash, then this type of policy will not cover your or your family’s claim of injury or death.

Should I Buy Uninsured/Underinsured Motorist Coverage in Michigan?

If your budget allows for additional auto insurance coverage, then yes. It’s a smart idea to invest in uninsured/underinsured motorist coverage to protect yourself and your family. It helps to avoid financial catastrophe in the event the at-fault driver has failed to either purchase insurance or has purchased liability insurance at an inadequate level.

If you have any questions, please contact Gary, Emily, or your Fraser Trebilcock attorney. Fraser Trebilcock lawyers have expertise in insurance law and would be happy to  consult with you or a family member at no cost.

Fraser Trebilcock Shareholder Gary C. Rogers has firsthand experience with car/deer accidents, having been involved in four himself; Gary is recognized as one of the top civil defense attorneys in the area of automobile related cases, and he has co-written Michigan No-Fault Law-The Insurers’ Perspective, a handbook for handling claims under Michigan’s No-Fault Automobile legislation. Gary can be reached at grogers@fraserlawfirm.com or (517) 377-0828.

Emily M. Vanderlaan is a litigation associate at Fraser Trebilcock serving some of the largest and most sophisticated insurers in Michigan. From case evaluation, to settlement negotiations, to trial and appeal work, Emily has experience representing insurance companies in a wide range of cases in Michigan state courts. You can reach her at (517) 377.0882 or at evanderlaan@fraserlawfirm.com.