Executive Orders 2020-91 and 2020-92 (COVID-19) - What You Need to Know

On May 21, 2020, Governor Whitmer issued Executive Order 2020-96 (“EO 2020-96”) and Executive Order 2020-97 (“EO 2020-97”). These new Orders amend and replace the prior “Stay-at-Home” order and standalone worker safeguards order that were issued on May 18, 2020. EO 2020-96 immediately replaces and supersedes all prior “stay-at-home” orders (most recently Executive Order 2020-92), and EO 2020-97 is now the relevant standalone order setting forth required worker safeguards for all businesses permitting or resuming in-person work.

Material Changes under EO 2020-96

EO 2020-96 continues most of the current restrictions and requirements through May 28, 2020 at 11:59 p.m., and implements the following material changes:

• Starting May 26, 2020, motor vehicle dealerships are permitted to open to in-person traffic by appointment only, subject to compliance with the required worker safeguards in EO 2020-97.
• Starting May 26, 2020, most retail stores are permitted to open to in-person traffic by appointment only, subject to compliance with the required worker safeguards in EO 2020-97, and provided that the store is limited to 10 customers at any one time.
• Prior Executive Orders regarding the postponement of non-essential medical and dental procedures and veterinary services are rescinded as of May 28, 2020 at 11:59 p.m., allowing outpatient health-care facilities, including veterinary offices, to perform nonessential medical, dental, and veterinary procedures, subject to the required worker safeguards in EO 2020-97 described below.
• Individuals may now leave home to seek non-essential medical or dental care for themselves or a household or family member. Individuals may also leave home to go to a motor vehicle dealership showroom or retail store, both by appointment only.
• Social gatherings of no more than 10 people are now permitted.

Material Changes under EO 2020-97

EO 2020-97 replaces and supersedes all prior workplace safety orders (most recently Executive Order 2020-91) and is now the relevant standalone worker safeguard order. The following are the material changes from EO 2020-91 to EO2020-97:

• Under general guidelines applicable to all businesses, an employer will allow employees with a confirmed or suspected case of COVID-19 to return to the workplace only after they are no longer infectious according to the latest guidelines from the CDC.
• Restaurants and bars previously had to require a doctor’s written release to return to work if an employee has a confirmed case of COVID-19. This is no longer included as a requirement.
• New specific guidelines were added for outpatient health-care facilities, including clinics, primary care physician offices, or dental offices, and veterinary clinics, including, among others, limits to waiting room occupancy, contactless sign-in (e.g., sign in on phone app), adding special hours for highly vulnerable patients, and conducting common screening protocol for all patient, including a temperature check.

Complete lists of the general worker safeguards and required additional safeguards by industry/workplace are set forth below. A business should review not only the general guidelines and safeguards but also the additional safeguards applicable to any industry or workplace that could describe that business.

If you have any questions about the new Orders, please contact your Parmenter Law attorney or a member of our Business Law Team listed below:

Chris Kelly (231) 722-5414 chris@parmenterlaw.com
Will Meier (231) 722-5409 will@parmenterlaw.com
Josh Reece (231) 722-5426 josh@parmenterlaw.com
John Schrier (231) 722-5401 john@parmenterlaw.com
Ben Reider (231) 722-5418 ben@parmenterlaw.com

COMPLETE LIST OF WORKER SAFEGUARDS (COVID-19)

Required Workplace Safeguards for Any Business Permitting In-Person Work

Pursuant to EO 2020-91, all businesses and operations that remain open for or otherwise permit in-person work must, at a minimum, do the following:

1. Develop 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 and available here. By June 1, 2020, or within two weeks of resuming in-person activities, whichever is later, a business’s or operation’s plan must be made readily available to employees, labor unions, and customers, whether via website, internal network, or by hard copy.
2. Designate one or more worksite supervisors to implement, monitor, and report on the COVID-19 control strategies developed under the COVID-19 preparedness and response plan. The supervisor must remain on-site at all times when employees are present on site. An on-site employee may be designated to perform the supervisory role.
3. Provide COVID-19 training to employees that covers, at a minimum:
   a. Workplace infection-control practices.
   b. The proper use of personal protective equipment.
   c. 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.
   d. How to report unsafe working conditions.
4. Conduct a daily entry self-screen protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19.
5. 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 to the worksite.
6. Provide non-medical grade face coverings to their employees.
7. Require face coverings to be worn when employees cannot consistently maintain six feet of separation from other individuals in the workplace, and consider face shields when employees cannot consistently maintain three feet of separation from other individuals in the workplace.
8. Increase facility cleaning and disinfection to limit exposure to COVID-19, especially on high-touch surfaces (e.g., door handles), paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).
9. Adopt protocols to clean and disinfect the facility in the event of a positive COVID-19 case in the workplace.
10. 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.
11. When an employee is identified with a confirmed case of COVID-19, within 24 hours, notify both:
    a. The local public health department, and
    b. Any co-worker, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.
12. Follow Executive Order 2020-36, and any executive orders that follow it, that prohibit discharging, disciplining, or otherwise retaliating against employees who stay home or who leave work when they are at particular risk of infecting others with COVID-19.
13. 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.
14. Restrict business-related travel for employees to essential travel only.
15. Encourage employees to use personal protective equipment and hand sanitizer on public transportation.
16. Promote remote work to the fullest extent possible.
17. Adopt any 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.

EO-2020-91 requires employers to keep a record of the activities described in paragraphs 3, 4, and 11 above.

Additional Safeguards Specific to Manufacturing Facilities

Manufacturing facilities must also do all of the following:

1. Adhere to and implement all general safeguards and guidelines for any business permitting in-person work.
2. Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering the facility, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with temperature screening as soon as no-touch thermometers can be obtained.
3. Create dedicated entry point(s) at every facility for daily screening as provided above, and ensure physical barriers are in place to prevent anyone from bypassing the screening.
4. Suspend all non-essential in-person visits, including tours.
5. Train workers on, at a minimum:
   a. Routes by which the virus causing COVID-19 is transmitted from person to person.
   b. Distance that the virus can travel in the air, as well as the time it remains viable in the air and on environmental surfaces.
   c. The use of personal protective equipment, including the proper steps for putting it on and taking it off.
6. Reduce congestion in common spaces wherever practicable by, for example, closing salad bars and buffets within cafeterias and kitchens, requiring individuals to sit at least six (6) feet from one another, placing markings on the floor to allow social distancing while standing in line, offering boxed food via delivery or pick-up points, and reducing cash payments.
7. Implement rotational shift schedules where possible (e.g., increasing the number of shifts, alternating days or weeks) to reduce the number of workers in the facility at the same time.
8. Stagger meal and break times, as well as start times at each entrance, where possible.
9. Install temporary physical barriers, where practicable, between workstations and cafeteria tables.
10. Create protocols for minimizing personal contact upon delivery of materials to the facility.
11. Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible.
12. Ensure there are sufficient handwashing or hand-sanitizing stations at the worksite to enable easy access by workers, and discontinue use of hand dryers.
13. Notify plant leaders and potentially exposed individuals upon identification of a positive case of COVID-19 in the facility, as well as maintain a central log for symptomatic workers or workers who received a positive test for COVID-19.
14. Send potentially exposed individuals home upon identification of a positive case of COVID-19 in the facility.
15. Require employees to self-report to plant leaders as soon as possible after developing symptoms of COVID-19.
16. Shut areas of the manufacturing facility for cleaning and disinfection, as necessary, if a worker goes home because he or she is displaying symptoms of COVID-19.

Additional Safeguards Specific to Construction Industry

Businesses or operations in the construction industry must also:

1. Adhere to and implement all general safeguards and guidelines for any business permitting in-person work.
2. Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering a worksite, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.
3. Create dedicated entry point(s) at every worksite, if possible, for daily screening as required above, or in the alternative issue stickers or other indicators to workers to show that they received a screening before entering the worksite that day.
4. Provide instructions for the distribution of personal protective equipment and designate on-site locations for soiled masks.
5. Require the use of work gloves where appropriate to prevent skin contact with contaminated surfaces.
6. Identify choke points and high-risk areas where workers must stand near one another (such as hallways, hoists and elevators, break areas, water stations, and buses) and control their access and use (including through physical barriers) so that social distancing is maintained.
7. Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers.
8. Notify contractors (if a subcontractor) or owners (if a contractor) of any confirmed COVID-19 cases among workers at the worksite.
9. Restrict unnecessary movement between project sites.
10. Create protocols for minimizing personal contact upon delivery of materials to the worksite.

Additional Safeguards for Work Performed Outdoors

Businesses or operations whose work is performed outdoors must also:

1. Adhere to and implement all general safeguards and guidelines for any business permitting in-person work.
2. Prohibit gatherings of any size in which people cannot maintain six feet of distance from one another.
3. 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 from one another.
4. Provide and require the use of personal protective equipment such as gloves, goggles, face shields, and face coverings, as appropriate for the activity being performed.
5. Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning and disinfection of tools, equipment, and frequently touched surfaces.

Additional Safeguards for Retail Stores

Retail stores that are open for in-store sales must:

1. Adhere to and implement all general safeguards and guidelines for any business permitting in-person work.
2. Create communications material 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.
3. Establish lines to regulate entry in accordance with paragraph 4 immediately below, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
4. Adhere to the following restrictions:
   a. For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal. Stores of more than 50,000 square feet must:
   i. Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
   ii. Create at least two hours per week of dedicated shopping time for vulnerable populations.
5. Post signs at store entrance(s) instructing customers of their legal obligation to wear a face covering when inside the store.
6. Post signs at store entrance(s) informing customers not to enter if they are or have recently been sick.
7. Design spaces and store activities in a manner that encourages employees and customers to maintain six feet of distance from one another.
8. Install physical barriers at checkout or other service points that require interaction, including plexiglass barriers, tape markers, or tables, as appropriate.
9. Establish an enhanced cleaning and sanitizing protocol for high-touch areas like restrooms, credit-card machines, keypads, counters, shopping carts, and other surfaces.
10. Train employees on (a) appropriate cleaning procedures, including training for cashiers on cleaning between customers; and (b) how to manage symptomatic customers upon entry or in the store.
11. 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.
12. Limit staffing to the minimum number necessary to operate.

Additional Safeguards for Offices

Offices must also:

1. Adhere to and implement all general safeguards and guidelines for any business permitting in-person work.
2. Assign dedicated entry point(s) for all employees to reduce congestion at the main entrance.
3. Take steps to reduce entry congestion and to ensure the effectiveness of screening (e.g., by staggering start times, adopting a rotational schedule so only half of employees are in the office at a particular time).
4. Require face coverings in shared spaces, including during in-person meetings and in restrooms and hallways.
5. 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, locking conference rooms).
6. Turn off water fountains.
7. Prohibit social gatherings and meetings that do not allow for social distancing or that create unnecessary movement through the office.
8. Provide disinfecting supplies and require employees wipe down their work stations at least twice daily.
9. Post signs about the importance of personal hygiene.
10. Disinfect high-touch surfaces in offices (e.g., whiteboard markers, restrooms, handles) and minimize shared items when possible (e.g., pens, remotes, whiteboards).
11. Institute cleaning and communications protocols when employees are sent home with symptoms.
12. 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.
13. Suspend all nonessential visitors.
14. Restrict all non-essential travel, including in-person conference events.

Additional Safeguards for Restaurants and Bars

Restaurants and bars must also:

1. Adhere to and implement all general safeguards and guidelines for any business permitting in-person work.
2. Limit capacity to 50% of normal seating.
3. Require six feet of separation between parties or groups 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).
4. Create communications material for customers (e.g., signs, pamphlets) to inform them of changes to restaurant or bar practices and to explain the precautions that are being taken to prevent infection.
5. Close waiting areas and ask customers to wait in cars for a call when their table is ready.
6. Close self-serve food or drink options, such as buffets, salad bars, and drink stations.
7. 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.
8. Post sign(s) at store entrance(s) informing customers not to enter if they are or have recently been sick.
9. Post sign(s) instructing customers to wear face coverings until they get to their table.
10. Require hosts and servers to wear face coverings in the dining area.
11. 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”).
12. 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).
13. Train employees on:
    a. Appropriate use of personal protective equipment in conjunction with food safety guidelines.
    b. Food safety health protocols (e.g., cleaning between customers, especially shared condiments).
    c. How to manage symptomatic customers upon entry or in the restaurant.
14. 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.
15. 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 Center for Disease Control. Such cleaning may occur overnight.
16. Install physical barriers, such as sneeze guards and partitions at cash registers, bars, host stands, and other areas where maintaining physical distance of six feet is difficult.
17. To the maximum extent possible, limit the number of employees in shared spaces, including kitchens, break rooms, and offices, to maintain at least a six-foot distance between employees.

Additional Safeguards for Research Laboratories

Research Laboratories, but not laboratories that perform diagnostic testing, must:

1. Assign dedicated entry point(s) and/or times into lab buildings.
2. Conduct a daily entry screening protocol for employees, contractors, suppliers, and any other individuals entering a worksite, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.
3. Create protocols and/or checklists as necessary to conform to the facility’s COVID-19 preparedness and response plan under section 1(a).
4. Suspend all non-essential in-person visitors (including visiting scholars and undergraduate students) until further notice.
5. Establish and implement a plan for distributing face coverings.
6. Limit the number of people per square feet of floor space permitted in a particular laboratory at one time.
7. Close open workspaces, cafeterias, and conference rooms.
8. As necessary, use tape on the floor to demarcate socially distanced workspaces and to create one-way traffic flow.
9. Require all office and dry lab work to be conducted remotely.
10. Minimize the use of shared lab equipment and shared lab tools and create protocols for disinfecting lab equipment and lab tools.
11. Provide disinfecting supplies and require employees to wipe down their work stations at least twice daily.
12. Implement an audit and compliance procedure to ensure that cleaning criteria are followed.
13. Establish a clear reporting process for any symptomatic individual or any individual with a confirmed case of COVID-19, including the notification of lab leaders and the maintenance of a central log.
14. Clean and disinfect the work site when an employee is sent home with symptoms or with a confirmed case of COVID-19.
15. Send any potentially exposed co-workers home if there is a positive case in the facility.
16. Restrict all non-essential travel, including in-person conference events.

Additional Safeguards for Outpatient Health-Care Facilities

Outpatient health-care facilities, clinics, primary care physician offices, dental offices, and veterinary clinics must also:

1. Post signs at entrance(s) instructing patients to wear a face covering when inside.
2. Limit waiting-area occupancy to the number of individuals who can be present while staying six feet away from one another and ask patients, if possible, to wait in cars for their appointment to be called.
3. Mark waiting rooms to enable six feet of social distancing (e.g., by placing X’s on the ground and/or removing seats in the waiting room).
4. Enable contactless sign-in (e.g., sign in on phone app) as soon as practicable.
5. Add special hours for highly vulnerable patients, including the elderly and those with chronic conditions.
6. Conduct a common screening protocol for all patients, including a temperature check and questions about COVID-19 symptoms.
7. Place hand sanitizer and face coverings at patient entrance(s).
8. Require employees to make proper use of personal protective equipment in accordance with guidance from the CDC and the U.S. Occupational Health and Safety Administration.
9. Require patients to wear a face covering when in the facility, except as necessary for identification or to facilitate an examination or procedure.
10. Install physical barriers at sign-in, temperature screening, or other service points that normally require personal interaction (e.g., plexiglass, cardboard, tables).
11. Employ telehealth and telemedicine to the greatest extent possible.
12. Limit the number of appointments to maintain social distancing and allow adequate time between appointments for cleaning.
13. Employ specialized procedures for patients with high temperatures or respiratory symptoms (e.g., special entrances, having them wait in their car) to avoid exposing other patients in the waiting room.
14. Deep clean examination rooms after patients with respiratory symptoms and clean rooms between all patients.
15. Establish procedures for building disinfection in accordance with CDC guidance if it is suspected that an employee or patient has COVID-19 or if there is a confirmed case.