On March 23, 2020, Governor Whitmer issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. The Order limited gatherings and travel, and prohibited employees who were not deemed “critical infrastructure workers” or workers necessary to conduct “minimum basic operations” from leaving home to work. On April 6, 2020, our office published a Client Alert discussing the increased enforcement of critical infrastructure designations in Executive Order 2020-21. https://www.mikameyers.com/news/article/increased-enforcement-of-critical-infrastructure-designations-in-the-stay-home-stay-safe-order
On April 9, 2020, Governor Whitmer issued Executive Order 2020-42 (“EO 2020-42”), ordering all Michigan workers, who are not necessary to sustain or protect life or to conduct necessary business operations, to stay-at-home until April 30, 2020. EO 2020-42 rescinded Governor Whitmer’s EO 2020-21, but substantially retained the previous definition of “critical infrastructure worker.” EO 2020-42 took effect on April 9, 2020 at 11:59 pm. EO 2020-42 is the latest in numerous COVID-19 related orders and legislation issued on state and federal levels. Under the new executive order, employers are still required to designate critical infrastructure workers who are necessary to perform in-person work. It is therefore important for employers to document those designations and keep copies in a compliance file. As reported in the Client Alert found at the above link, those found to be violating the previous stay-at-home order were subject to fines of up to $1,000 per day. These fines will likely continue to be an enforcement mechanism for EO 2020-42.
For those employers continuing in-person critical infrastructure work, it is imperative to remain diligent and organized in mitigating the risk of exposure to workers who are not able to perform necessary tasks remotely. Critical infrastructure employers should ensure that they are printing and posting the Department of Labor Notice required under the Families First Coronavirus Response Act (“FFCRA”). https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf. Employers should also review their employee policy handbooks to update provisions addressing the new paid leave provisions under the FFCRA. The FFCRA applies to all private employers with fewer than 500 employees, and all public employers. Employers are well advised to update paid or unpaid leave polices to include leave under the FFCRA or address these leaves in a separate policy. If no such policies exist, they should be created.
In EO 2020-42, Governor Whitmer reiterated the worker safety-related requirements for businesses continuing in-person work that were set out in EO 2020-21, and added an additional requirement. The measures these businesses must implement now include: “Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration. Such plan must be available at company headquarters or the worksite.”
As such, businesses that remain open need to take immediate action to prepare COVID-19 plans consistent with the guidelines issued by the Occupational Health and Safety Administration (“OSHA”). These plans must address topics such as the classification of a business’s employees according to risk of exposure to COVID-19, steps to prevent exposure to COVID-19, and methods of addressing employees who have been exposed to the virus. Employers should be proactive in working with their attorneys to create written plans that are readily accessible.
Employers should also stay up-to-date with the Center for Disease Control and Prevention’s (“CDC”) guidance on sanitary conditions. The CDC has provided guidance on how to reduce transmission among employees, how to maintain healthy business operations, and how to prepare for a COVID-19 outbreak in the workplace.
With the legislation, rules, orders, and interpretive guidance related to COVID-19 constantly changing, businesses need to stay in close contact with their attorneys to ensure that they maintain compliance with the latest requirements. If you have any COVID-19 employment law questions or you need help crafting your preparedness and response plans, contact Nikole Canute
(moc.sreyemakim@etunacn | 616-632-8049), Nate Wolf (moc.sreyemakim@flown | 616-632-8046), or Scott Dwyer
(moc.sreyemakim@reywds | 616-632-8033).