By: Brooke M. Jordan, Esq.
On October 22, 2020, Governor Whitmer signed into law House Bill 6030, a.k.a. COVID 19- Response and Reopening Liability Assurance Act (Act).( http://www.legislature.mi.gov/documents/2019-2020/publicact/pdf/2020-PA-0236.pdf)
This Act provides condominium and homeowners associations with an affirmative defense to civil actions asserted by a co-owner, tenant or invitee arising out of COVID 19 beginning March 1, 2020. These civil actions alleging tort claims resulting from COVID-19 include negligence, gross negligence, or intentional infliction of emotional distress.
To enjoy this benefit of immunity, the association must show that it complied with COVID-19 related laws, rules, regulations, and orders that “had not been denied legal effect at the time of the conduct or risk that allegedly caused harm.” Even though the Michigan Supreme Court concluded on October 2, 2020 that the Governor was not authorized to issue executive orders addressing COVID-19 after April 30, 2020 and such orders were denied legal effect, an Association must still show that it complied with those Orders prior to the Supreme Court’s ruling.
An association’s compliance with COVID-19 related laws, rules, regulations, and orders need not, however, rise to the level of strict compliance. The Act provides that “isolated, de minimis deviation” by the Association from the laws, rules, regulations, and orders will not render it defenseless from COVID-19. For guidance, an Association should look to Federal, State, and local laws and regulations to carry out its important functions and activities.
For instance, Michigan law imposes a duty on the Michigan Department of Health and Human Services (MDHHS) to “prevent disease, prolong life, and promote public health,” and gives MDHHS the power to “[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers and duties vested by law in the department.”
MDHHS has found that to effectively carry out its duty to protect the public’s health, it must impose rules on public gatherings. These rules became effective on October 9, 2020. To ensure your Association is afforded the full protection provided by this recently enacted law, it should comply with these rules when holding meetings and maintaining or opening fitness facilities and pools. See https://www.michigan.gov/documents/coronavirus/MDHHS_epidemic_order_-_Gatherings_masks_bars_sports_-_FINAL_signed_704740_7.pdf
In conclusion, this immunity from COVID-19 related tort claims is not absolute and will not apply if the association fails to follow the laws, rules, and regulations issued by Federal authorities, MDHHS, and local governments.
Should you have any questions or concerns regarding this recently enacted law and its implications on your community, please do not hesitate to contact us.
Brooke M. Jordan joined Zelmanski, Danner & Fioritto, PLLC as an associate attorney in 2020. She graduated from Michigan State University with High Honors in 1997, where she obtained her Bachelor of Arts in Social Relations from James Madison College. She earned her Juris Doctorate from Wayne State University Law School in 2001.
Ms. Jordan has been an Assistant Attorney General for the states of Arizona and Michigan. In Arizona, she sought to advance the best interests of children. In Michigan, she represented the State in cases involving securities fraud, antitrust, and consumer protection.
Most recently, Ms. Jordan was a Lead Attorney for the Detroit Land Bank Authority, where she was responsible for implementing and managing the Nuisance Abatement Program in the City of Detroit Council Districts 1, 2, and 4. She strategically and effectively aligned with internal and external partners throughout the City of Detroit (including, but not limited to, the City of Detroit Department of Neighborhoods, Detroit Police Department, City of Detroit Buildings, Safety Engineering and Environmental Department, Community Associations, Block Clubs, and residents). Collectively, they passionately sought to eradicate blight, stabilize and rebuild the most densely populated neighborhoods in Detroit. Ms. Jordan sincerely cares about the quality of life of people and proactively seeks ways to assist in a Community’s ability to thrive.
Ms. Jordan has numerous interests outside of legal practice. She very much enjoys spending time with her children. She also enjoys outdoor activities including kayaking, hiking and running.