Michigan Governor Gretchen Whitmer issued two executive orders over the past several days that will impact certain employers that are responding to the coronavirus outbreak and COVID-19. On March 14, 2020, Executive Order 2020-06 was rescinded and replaced with Executive Order 2020-07, which places temporary restrictions on individuals who may enter health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities. On March 16, 2020, Executive Order 2020-05 was rescinded and replaced with Executive Order 2020-11, which places restrictions on large assemblages and events.
Executive Order 2020-07
Executive Order 2020-07 provides that “all health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities must prohibit from entering their facilities any visitors that: are not necessary for the provision of medical care, the support of activities of daily living, or the exercise of power of attorney or court-appointed guardianship for an individual under the facility’s care; are not a parent, foster parent, or guardian of an individual who is 21 years of age or under and who is under the facility’s care; are not visiting an individual under the facility’s care that is in serious or critical condition or in hospice care; and are not visiting under exigent circumstances or for the purpose of performing official governmental functions.”
The executive order also requires affected facilities to “perform a health evaluation of all individuals that are not under the care of the facility each time the individual seeks to enter the facility.” In addition, the executive order requires facilities to “deny entry to those individuals who do not meet the evaluation criteria,” which includes “symptoms of a respiratory infection, such as fever, cough, shortness of breath, or sore throat; and contact in the last 14 days with someone with a confirmed diagnosis of COVID-19.”
A willful violation of the executive order is a misdemeanor. These prohibitions went into effect immediately and will stay in force until April 5, 2020.
What is a health evaluation?
The health evaluation must include a screening for symptoms of a respiratory infection, such as fever, cough, shortness of breath, or sore throat. The evaluation must also include making sure the individual has not had contact in the past 14 days with someone with a confirmed diagnosis of COVID-19.
While the executive order does not describe the types of screening that are required, presumably this will include visual screening, forehead temperature checks and some form of a questionnaire relative to the above symptoms or contact.
Employers whose employees must enter a covered health facility to provide the necessary services should be prepared to undergo the required health evaluation. Given the exigent circumstances posed by COVID-19, the issuance of an EO, and the limited time period involved, requiring such health screenings of employees who enter a covered facility would most likely be permissible under the “direct threat” analysis of the Americans with Disabilities Act (ADA) and applicable state law.
What is a covered facility?
Michigan’s Public Health Code defines a “health facility or agency” to include all of the following:
- An ambulance operation, aircraft transport operation, nontransport prehospital life support operation, or medical first response service.
- A county medical care facility.
- A freestanding surgical outpatient facility.
- A health maintenance organization.
- A home for the aged.
- A hospital.
- A nursing home.
- A hospice.
- A hospice residence.
- A facility or agency listed above that is located in a university, college, or other educational institution.
Residential care facilities likely include independent living, assisted-living, and nursing home facilities. “Adult foster care congregate facility” means an adult foster care facility with approval and capacity to receive more than 20 adults to be provided with foster care.
What does this mean for companies whose employees supply or service a covered facility?
Employers may first want to determine if it is necessary to have workers enter the covered facility to provide supplies or services. In this regard, employers may want to explore alternatives to actually entering the facility with the facility owner. For example, deliveries could be left at specified location outside for retrieval by an employee inside the facility. Food may be prepared elsewhere and delivered to the covered facility rather than being prepared on site.
If the supply or service is necessary to provide medical care to patients or residents, the worker is not prohibited from entering the covered facility as long as he or she satisfactorily passes a mandatory health evaluation. Workers who are supplying goods or services necessary to provide medical care or support daily living activities at the covered facility are not prohibited from entering the covered facility as long as they satisfactorily pass a mandatory health evaluation. While the executive order does not define the phrase “support the activities of daily living.” Food service workers, equipment repair personnel, contract medical personnel, custodians, and those who supply essential goods and services to the covered facility, will most likely be able to continue to provide such services provided they pass a health evaluation each time they enter the covered facility.
Executive Order 2020-11
Executive Order 2020-11 prohibits “all assemblages of more than 50 people in a single indoor shared space and all events of more than 50 people.” The executive order defines a “single indoor shared space” to include “a room, hall, cafeteria, auditorium, theater, or gallery” but not health care facilities; workplaces or portions thereof not open to the public; the state legislature; and assemblages for the purpose of mass transit, the purchase of groceries or consumer goods, or the performance of agricultural or construction work.”
The executive order also requires all elementary and secondary schools to “close to students for educational purposes.” The school closures apply to “all public, nonpublic, and boarding schools in the state” but not “residential facilities at schools and childcare providers at schools.”
A willful violation of this order is a misdemeanor. The executive order went into effect on March 17, 2020, and will stay effective until April 5, 2020.
What does Executive Order 2020-11 mean for employers?
Clearly, the executive order temporarily bans recreational, social, and sporting events where 50 or more people will assemble. No doubt, employees of stadiums, concert venues, theaters, wedding halls, large restaurants and cafeterias will be impacted as many events at those venues will be canceled.
In contrast, the executive order does not cover private workplaces, including office buildings and industrial or manufacturing plants, such as automotive plants. Nor does it cover stores or other facilities that sell groceries or consumer goods to the public. Assembly for purposes of public transportation is equally unaffected. Employees who work at these facilities will not be impacted by the executive order.
Based on the language of the new executive order, it appears that employers that have shared or open work spaces in corporate offices that require assembly of more than 50 employees may not be impacted. However, if an employer has a single room or shared space where more than 50 employees work in a single space—as has become more common with shared or open office floor plans—the Centers for Disease Control & Prevention (CDC) has recommended that the employer consider taking steps to temporarily eliminate the assembly. Many employers have already done so by implementing temporary remote or flexible working arrangements for the duration of the COVID-19 pandemic.
While employers at this time are not expected to modify cafeteria gathering spaces that service 50 or more employees at any given time, employers may want to consider providing food service through alternate methods or staggering the assembly so large crowds do not gather. As a practical matter, given the number of remote working arrangements that are temporarily in place, cafeteria operations may organically decline from normal levels during the pandemic.
Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.