Requirements for Reopening Businesses - Executive Order 2020-91

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As Michigan proceeds toward re-opening its economy, Governor Whitmer has signed Executive Order 2020-91, effective May 19, 2020. This executive order sets forth various requirements for employers and businesses who are reopening as restrictions are lifted. The order requires that every employer open for in-person work develop a preparedness and response plan consistent with regulations made by the Occupational Health and Safety Administration. It also sets forth specific measures that businesses must follow to mitigate the risk of infection in the workplace. Examples of such measures include, but are not limited to some of the following:

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• Designating worksite supervisors to implement, monitor, and report on COVID-19 control strategies;

• Providing training to all employees regarding workplace infection control practices, the proper use of personal protective equipment (PPE), the steps employees must use to notify that they have been diagnosed with or experienced symptoms of COVID-19, and how to report unsafe working conditions;

• Conducting daily entry self-screening protocols;

• Maintaining 6 feet of distance between employees to the maximum extent possible;

• Providing employees with non-medical grade face coverings;

• Increasing cleaning and disinfection protocols on high-touch surfaces;

• Developing a response and disinfection protocol for confirmed cases of COVID-19 in the workplace;

• Notifying the local public health department, co-workers, contractors, or suppliers who come into contact with an employee who is diagnosed with a confirmed case of COVID-19;

• Restricting non-essential travel;

• Promoting remote work to the maximum extent possible;

• Adopting additional measures that are reasonable in light of the work performed

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It is important to note that this executive order sets forth many other detailed requirements that employers must follow to protect the safety of their employees when opening for business. It further sets forth specific protocols for businesses whose work is primarily performed outdoors, construction businesses, manufacturing facilities, research laboratories, retail stores, offices, and restaurants and bars.

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The requirements of the order are enforced by the agencies responsible for overseeing compliance with workplace health-and-safety standards. The failure to adhere to the rules set forth by the order is deemed a violation of the Michigan Occupational Safety and Health Act, MCL 408.1011.

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If you are an employee and you have questions about your rights when returning to work, or if you are an employer with questions about your responsibilities when reopening, contact us.

 

Executive Order 2020-36 - "Protecting Workers Who Stay Home, Stay Safe When They or Their Close Contacts Are Sick"

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On April 3, 2020, Governor Whitmer signed Executive Order 2020-36, which prohibits employers from firing or retaliating against an employee who stays home because he or she is diagnosed with or displays symptoms of COVID-19, or has close personal contact with an individual who is diagnosed with or displays symptoms of COVID-19.

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Who is protected?  

 

Employees who take leave because of one of the following reasons:

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1. The employee has tested positive for COVID-19; 

2. The employee displays one or more of the symptoms associated with COVID-19 (fever, atypical cough, atypical shortness of breath); or

3. The employee has had close personal contact with someone who has tested positive for or displace symptoms of COVID-19.

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Note: The third category of employees are not included under the order if they are health care professionals, workers at a health care facility, first responders, child protective service employees, workers at child caring institutions, or workers at correctional facilities. Additionally, the protection included in the order ceases once the employee or individual displaying symptoms of COVID-19 tests negative for the disease.

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What activity is protected?

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For employees that meet the criteria under the order, they may take leave to comply with the state's public policy to self-isolate.

 

This means that if the employee has tested positive for or displayed symptoms of COVID-19, they are to remain in their homes until three days have passed since symptoms have resolved, and at least seven days have passed since symptoms first appeared or since they were swabbed for the test yielding a positive result.

 

If the employee has been in close personal contact with an individual who has tested positive for or displays symptoms of COVID-19, they are to remain in their home until either fourteen (14) days have passed since the last close contact with the symptomatic individual, or the symptomatic individual receives a negative COVID-19 test.

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The exceptions provided allow for the individual to leave the home "to the extent absolutely necessary" to obtain food, medical supplies, or supplies necessary to sustain or protect life where such supplies cannot be obtained via delivery. These exceptions also allow the individual to leave their home to engage in outdoor activity consistent with remaining at least six feet from people outside of their household. If an individual chooses to leave their home for one of these reasons, they should wear a face mask or some sort of covering over their nose and mouth.

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An employee who returns to work before the time specified above is not entitled to protection under the order. 

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Is leave under this order paid?

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Not necessarily. Employees who cannot work are treated as though they are taking leave under the Michigan Paid Medical Leave Act. The Michigan Paid Medical Leave Act provides for 40 hours of paid sick leave to be provided to an employee in a given year. However, if the employee has not accrued paid leave, or if the employee has already exhausted the paid leave, time off under the executive order need not be paid.

 

Additionally, leave under this order is not limited to the 40 hour provision of the PMLA, and is instead dictated by the guidelines that apply to self-isolation, as described above.

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What penalties apply to an employer who violates the order?

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The order may be enforced by the Michigan Department of Labor and Economic Opportunity, in the same manner that the department enforces violations of the PMLA. Employees may file a complaint within six months of the violation. The department must then investigate. If it finds that the employer violated the order, it may award the employee the leave that was wrongfully withheld, and impose an administrative fine of up to $1,000.00. For willful violations, the employer may face additional penalties of up to $100.00 per instance. 

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It should be noted that the executive order states that it does not create a private cause of action against an employer or employee for failing to abide by its terms.

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Working and the Stay-Home Order

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On March 23, 2020, Governor Whitmer signed Executive Order 2020-21 entitled "Temporary Requirement to Suspend Activities that are not necessary to sustain or protect life." This order broadly prohibits in-person work that is not necessary to sustain or protect life and orders all Michigan residents to remain at home with limited exceptions.

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This order prohibits a business to operate or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are determined critical infrastructure workers or essential employees who are necessary to conduct minimum basic operations.

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Critical Infrastructure Workers Include those described by the Director of the US Cybersecurity and Infrastructure Agency (here), including some workers in the following:​

• Health care and public health;

• Law enforcement and public health

• Food and agriculture;

• Energy;

• Water and wastewater; 

• Transportation and logistics;

• Public works;

• Communications and IT, including news media;

• Other community based government operations and essential functions;​

• Critical manufacturing;

• Hazardous Materials;

• Financial services;

• Chemical supply chains and safety;

• Defense industrial base workers;

• Child care (but only to the extent necessary to serve children or dependents of critical infrastructure workers);

• Designated suppliers and distribution centers;

• Insurance, to the extent work cannot be done remotely;

• Businesses and volunteer organizations that provide food, shelter, and other necessities of life for the needy/disabled;

• Critical labor union functions, including administering health and welfare funds or monitoring the well-being and safety of union members who are critical infrastructure workers.

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Employees  that are necessary to Conduct Minimum Basic Operations are those whose in-person presence is strictly necessary:

• To allow the business or operation to maintain the value of inventory/equipment;

• To care for animals;

• To ensure security; or

• To process transactions such as payroll or employee benefits, or facilitate the ability of others to work remotely.

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Businesses that employ critical infrastructure workers must designate which of their employees qualify and inform them of that designation. Businesses must also designate and inform their employees who are necessary to conduct minimum basic operations. All designations must be in writing (but may be made orally through March 31, 2020). Workers in healthcare and public health, workers who perform necessary government activities, and workers and volunteers who provide food, shelter, and other necessities of life for the needy, disabled, or those affected by COVID-19 need not be specifically designated nor informed of their designation.

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Can an employer force an employee to violate the stay-at-home order?

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As noted above, there are many exceptions to the Governor's order suspending activities that are not necessary to sustain or protect life. However, if an employer does not meet these exceptions and refuses to suspend operations, what rights are afforded to its employees?

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An employer may not terminate or take another adverse employment action against an employee for his/her refusal to break the law. An employer that runs afoul of the executive order and takes action against its employees may expose itself to legal liability. If you are a small business seeking assistance on how to handle these scenarios, or you are an employee and you believe you are being unlawfully required to work, contact us for more information.

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COVID-19 and OSHA Regulations

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The Occupational Safety and Health (OSH) Act is administered by the Occupational Saftey and Health Administration(OSHA). It governs workplace safety and provides for workers rights and reporting guidelines for safety violations. There is no specific OSHA standard covering COVID-19 in the workplace. However some OSHA requirements may apply to the pandemic associated with the novel coronavirus. For example, the "general duty clause" requires that employers provide their employees "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." 

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For employees who are concerned about workplace safety, OSHA provides protection against retaliation. Employees have the right to ask what steps are being taken to ensure their safety without fear from being fired or retaliated against.

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OSHA also governs the availability and use of Personal Protection Equipment (PPE) in the workplace. This is especially relevant to health care providers and those who are critical infrastructure workers that may be exposed to COVID-19 in the workplace. OSHA has issued temporary guidelines related to PPE and COVID-19. It recognizes the shortage and high demand of N-95 masks and provides some discretion to OSHA field offices in enforcing requirements, as long as employers:

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• Make a good-faith effort to comply with 29 CFR § 1910.134;
   

• Use only NIOSH-certified respirators;
   

• Implement CDC and OSHA strategies for optimizing the supply of N95 filtering facepiece respirators and prioritizing their use, as discussed above;
   

• Perform initial fit tests for each HCP with the same model, style, and size respirator that the worker will be required to wear for protection against COVID-19 (initial fit testing is essential to determine if the respirator properly fits the worker and is capable of providing the expected level of protection);
   

• Inform workers that the employer is temporarily suspending the annual fit testing of N95 filtering facepiece respirators to preserve and prioritize the supply of respirators for use in situations where they are required to be worn;

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• Explain to workers the importance of performing a user seal check (i.e., a fit check) at each donning to make sure they are getting an adequate seal from their respirator, in accordance with the procedures outlined in 29 CFR § 1910.134, Appendix B-1, User Seal Check Procedures.4 See also, OSHA tutorial videos (English, Spanish).5
   

• Conduct a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit (e.g., facial scarring, dental changes, cosmetic surgery, or obvious changes in body weight) and explain to workers that, if their face shape has changed since their last fit test, they may no longer be getting a good facial seal with the respirator and, thus, are not being adequately protected; and,
   

• Remind workers that they should inform their supervisor or their respirator program administrator if the integrity and/or fit of their N95 filtering facepiece respirator is compromised.

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Considering the novelty of this situation, the implementation of these guidelines and enforcement of OSHA provisions related to COVID-19 is very much fluid. Contact us for comprehensive guidance on your rights and obligations regarding workplace safety and COVID-19.

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