Michigan Extends “Stay Home, Stay Safe” Order Through May 28, 2020, While Announcing a Phased Reopening of Businesses with the Manufacturing Sector Next to Open

On May 7, 2020, Michigan Governor Whitmer issued Executive Order 2020-77, extending her April 3, 2020 Stay Home, Stay Safe Order through May 28, 2020, while setting forth a plan to reopen the state in phases as part of the Michigan Safe Start Plan (SSP).  The latest Order permits additional workers to resume operations immediately and establishes requirements regarding the May 11, 2020 reopening of manufacturing operations.

The following are critical takeaways for employers regarding the Order and SSP:

The SSP sets forth six phases of reopening: (1) Uncontrolled Growth, (2) Persistent Spread, (3) Flattening, (4) Improving, (5) Containing, and (6) Post-Pandemic.  The state is currently in Phase 3 – Flattening.

The SSP establishes guidelines necessary to move from one phase to the next.  However, the SSP also states that, if conditions worsen, it is possible to regress to a previous phase.  Additionally, the SSP divides the state into eight regions, which can progress or regress through the phases independent of each other.

Per Governor Whitmer’s May 7, 2020 press release, the state is currently in Phase 3. The SSP outlines the following necessary criteria to move to Phase 4: Cases and deaths decline more sharply; a decrease in positive test results; healthcare system capacity continues to strengthen; and robust testing, contact tracing, and containment protocols are established.  During Phase 3, offices must remain closed to all non-critical workers.  Once the state or specific regions reach Phase 4, offices may reopen, but remote work will still be required where feasible, and retail will be allowed to reopen, subject to capacity limitations.

EO 2020-77 permits manufacturing businesses to reopen on May 11, 2020 provided they abide by the following requirements:

1. Conduct 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 infection, together with temperature screening as soon as no-touch thermometers can be obtained.
2. Create dedicated entry point(s) at every facility for daily screening as provided in requirement No. 1 above, and ensure physical barriers are in place to prevent anyone from bypassing the screening.
3. Suspend all non-essential in-person visits, including tours.
4. Train workers on, at a minimum:
   1. Routes by which the virus causing COVID-19 is transmitted from person to person.
   2. Distance the virus can travel in the air, as well as the time it remains viable in the air and on environmental surfaces.
   3. Symptoms of COVID-19.
   4. Steps workers must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19.
   5. Measures that the facility is taking to prevent worker exposure to the virus, as described in the COVID-19 preparedness and response plan required under section 11(a) of this Order.
   6. Rules workers must follow in order to prevent exposure to and spread of the virus.
   7. The use of personal protective equipment, including the proper steps for putting it on and taking it off.
5. 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 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.
6. 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.
7. Stagger start time and meal times.
8. Install temporary physical barriers, where practicable, between work stations and cafeteria tables.
9. Create protocols for minimizing personal contact upon delivery of materials to the facility.
10. Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible.
11. Frequently and thoroughly clean and disinfect high-touch surfaces, paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).
12. Ensure there are sufficient hand washing 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. Encourage workers 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 they are displaying symptoms of COVID-19.

To facilitate the reopening of manufacturing businesses, the Order permits workers necessary to perform start-up activities at manufacturing facilities, including activities necessary to prepare the facilities to follow the workplace safeguards listed above, to return to work immediately.  Additionally, the Order allows the following workers to resume activities:

• Workers at suppliers, distribution centers, or service providers whose in-person presence is necessary to enable, support, or facilitate another business’s or operation’s resumed activities, including workers at supplier, distribution centers, or service providers along the supply chain.  Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
• Workers necessary to train, credential, and license first responders (e.g., police officers, firefighters, paramedics) and healthcare workers, including certified nursing assistants, provided that as much instruction as possible is provided remotely.
• Outdoor workers at places of outdoor recreation not otherwise closed under any executive orders.

Requirement for worker face coverings modified

In addition to previously established requirements for businesses remaining open for in-person work, such business must also require masks to be worn when workers cannot consistently maintain six feet of separation from other individuals in the workplace, and consider face shields when workers cannot consistently maintain three feet of separation from other individuals in the workplace.

The Order also states that an individual may be required to remove a face coving upon entering an enclosed public space for identification purposes.

Enforcement plans remain unchanged

As with Governor Whitmer’s original Stay Home, Stay Safe Order and subsequent extensions of that Order, this Order states that 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.