United States: Michigan Sets Forth Additional Requirements For Businesses That Reopen As The State Restarts Select Operations In Northern Michigan

On May 19, 2020, Michigan Governor Whitmer issued two Executive Orders. The first Executive Order establishes requirements for previously idled businesses as they reopen in the state. While many of the previous operational and safety requirements established in Governor Whitmer's most recent extension of the Stay Home, Stay Safe Order remain in effect, this Order includes new mandates, such as daily self-screening protocols (including a questionnaire), designation of a COVID-19 control supervisor, distancing and sanitation duties, as well as other requirements.

The second Executive Order announced the reopening of retail operations, in-person office work, and restaurants and bars in Regions 6 and 8 (Traverse City and Upper Peninsula Regions), as established by the Michigan Safe Start Plan.

The following are critical takeaways for employers regarding the Orders:

In addition to the prior mandates on businesses remaining open for in-person work, all businesses that are permitted to require their employees to leave their homes or residences for work under the Orders must now also:

• Designate one or more worksite supervisors to implement, monitor, and report on the COVID-19 control strategies developed under the business's required COVID-19 preparedness and response plan. The supervisor must remain on-site at all times when employees are present on-site. The Order allows businesses to designate an on-site employee to perform the supervisory role.
• Provide COVID-19 training to employees that covers, at minimum:
  
  • Workplace infection-control practices
  • The proper use of personal protective equipment (PPE)
  • Steps the employee must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19
  • How to report unsafe work conditions
• Conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19.
• Provide non-medical-grade face coverings to their employees.
• Require face coverings to be worn when employees cannot consistently maintain six feet of separation from other individuals in the workplace.
• Keep everyone on the worksite premises at least six feet from one another to the maximum extent possible, including through the use of ground markings, signs, and physical barriers, as appropriate.
• Make cleaning supplies available to employees upon entry and at the worksite and provide time for employees to wash hands frequently or to use hand sanitizer.
• Encourage employees to use PPE and hand sanitizer on public transportation.
• Restrict business-related travel for employees to essential travel only.
• Adopt additional infection-control measures that are reasonable in light of the work performed at the worksite and the rate of infection in the surrounding community.
• Adopt protocols to clean and disinfect the facility in the event of a positive COVID-19 case in the workplace.
• Establish a response plan for dealing with a confirmed infection in the workplace, including protocols for sending employees home and for temporary closures of all or part of the worksite to allow for deep cleaning.
• When an employee is identified with a confirmed case of COVID-19, within the first 24 hours, notify both the local public health department and any coworkers, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.

Recordkeeping requirements

The Order requires employers to maintain records of its COVID-19 training to employees, daily self-screenings, and any notifications to local public health departments, employees, contractors, or suppliers after an employee is identified with a confirmed case of COVID-19 as required above.

The Order requires businesses or operations whose work is primarily performed outdoors to:

• Prohibit gatherings of any size in which people cannot maintain six feet of distance;
• Limit in-person interaction with clients and patrons to the maximum extent possible, and bar any such interaction in which people cannot maintain six feet of distance;
• Provide and require the use of PPE such as gloves, goggles, face shields, and face coverings, as appropriate for the activity being performed; and
• Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent, thorough cleaning and disinfection of tools, equipment, and frequently touched surfaces.

In addition to restrictions established by previous Executive Orders pertaining to manufacturers, all manufacturers must also:

Train employees on how COVID-19 is transmitted, the distance the virus can travel in the air and the time it remains viable in the air and on surfaces, and the use of PPE, including proper steps for putting it on and taking it off.

In addition to restrictions established by previous Executive Orders pertaining to in-store sales, all retail stores that open for in-store sales must:

• Create communication materials for customers (e.g., signs or pamphlets) to inform them of changes to store practices and to explain the precautions the store is taking to prevent infection;
• Post signs at store entrance(s) instructing customers of their legal obligation to wear a face covering when inside the store and informing customers not to enter if they are or have recently been sick;
• Design spaces and store activities in a manner that encourages employees and customers to maintain six feet of distance from one another;
• Install physical barriers at checkout or other service points that require interaction, including Plexiglas barriers, tape markers, or tables as appropriate;
• Establish an enhanced cleaning and sanitizing protocol for high-touch area like restrooms, credit card machines, keypads, counters, shopping carts, and other surfaces;
• Train employees on:
  
  • Appropriate cleaning procedures, including training for cashiers on cleaning between customers; and
  • How to manage symptomatic customers upon entry or in the store.
• Notify employees if the employer learns that an individual (including a customer or supplier) with a confirmed case of COVID-19 has visited the store; and
• Limit staffing to the minimum number necessary to operate.

The Order requires offices that reopen to:

• Assign dedicated entry point(s) for all employees to reduce congestion at the main entrance;
• Provide visual indicators of appropriate spacing for employees outside the building in case of congestion;
• Take steps to reduce entry congestion and to ensure the effectiveness of screening (e.g., by staggering start times, adopting a rotational schedule wherein only half of employees are in the office at a particular time);
• Require face coverings in shared spaces, including during in-person meetings and in restrooms and hallways;
• Increase distancing between employees by spreading out workspaces, staggering workspace usage, restricting non-essential common space (e.g., cafeterias), providing visual cues to guide movement and activity (e.g., restricting elevator capacity with markings and locking conference rooms);
• Turn off water fountains;
• Prohibit social gatherings and meetings that do not allow for social distancing or that create unnecessary movement through the office;
• Provide disinfecting supplies and require employees wipe down their work stations at least twice daily;
• Post signs about the importance of personal hygiene;
• Disinfect high-touch surfaces in offices (e.g., whiteboard markers, restrooms handles) and minimize shared items when possible (e.g., pens, remotes, whiteboards);
• Institute cleaning and communications protocols when employees are sent home with symptoms;
• Notify employees if the employer learns that an individual (including a customer, supplier, or visitor) with a confirmed case of COVID-19 has visited the office;
• Suspend all nonessential visitors; and
• Restrict all non-essential travel, including in-person conference events.

The Order also mandates that all restaurants and bars that reopen must:

• Limit capacity to 50% of normal seating;
• Require six feet of separation between parties at different tables or bar tops (e.g., spread tables out, use every other table, remove or put up chairs or barstools that are not in use);
• Create communication materials for customers (e.g., signs or pamphlets) to inform them of changes to restaurant or bar practices and to explain the precautions that are being taken to prevent infection;
• Close waiting areas and ask customers to wait in cars for a call when their table is ready;
• Close self-serve food and drink options, such as buffets, salad bars, and drink stations;
• Provide physical guides, such as tape on floors or sidewalks and signage on walls to ensure that customers remain at least six feet apart in any lines;
• Post sign(s) at store entrance(s) informing customers not to enter if they are or have recently been sick and instructing customers to wear face coverings until they get to their table;
• Require hosts and servers to wear face coverings in the dining area;
• Require employees to wear face coverings and gloves in the kitchen area when handling food, consistent with guidelines from the Food and Drug Administration (FDA);
• Limit shared items for customers (e.g., condiments, menus) and clean high-contact areas after each customer (e.g., tables, chairs, menus, payment tools, condiments);
• Install physical barriers, such as sneeze guards and partitions at cash registers, bars, host stands, and other areas where maintain physical distance of six feet is difficult;
• To the maximum extent possible, limit the number of employees in shared spaces, including kitchens, break rooms, and offices, to maintain at least six-feet distance between employees;
• Notify employees if the employer learns that an individual (including an employee, customer, or supplier) with a confirmed case of COVID-19 has visited the store;
• Close restaurant immediately if an employee shows multiple symptoms of COVID-19 (fever, atypical shortness of breath, atypical cough) and perform a deep clean, consistent with guidance from FDA and the CDC. Such cleaning may occur overnight.
• Require a doctor's written release to work if an employee has a confirmed case of COVID-19.
• Train employees on:
  
  • Appropriate use of PPE in conjunction with food safety guidelines;
  • Food safety health protocols (e.g., cleaning between customers, especially shared condiments); and
  • How to manage symptomatic customers upon entry or in the restaurant.

The Order generally reasserts the requirements set forth in the previous Executive Order for manufacturing and construction operations that reopen.

Enforcement plans

Any challenge to penalties imposed by a department enforcing the regulations set forth in the first Order establishing reopening requirements will proceed through the same administrative review process as any challenge to a penalty imposed by the department or agency for a violation of its rules. Further, any business or operation that violates a rule set forth in the Order has "failed to provide a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to an employee" within the meaning of Michigan Occupational Safety and Health Act, MCL 408.1011.

In regard to the Order reopening Regions 6 and 8, any willful violation of the Order is a misdemeanor offense pursuant to the Emergency Powers of Governor, MCL 10.33 and Emergency Management Act, MCL 30.405.