Executive Order 2020-91: Detailed Safeguards to Protect Workers

Governor Whitmer has recently enacted Executive Order 2020-91 (“EO 2020-91”), which details safeguards designed to protect Michigan workers from COVID-19. Previously, the safeguards were incorporated into the “stay-at-home” orders.

This order governs the social distancing and mitigation measures that all businesses must adhere to when operating. In addition to the general safeguards, the order details industry specific actions that must be taken by businesses in that industry.

We have previously covered industry specific safeguards for construction, manufacturing, restaurants and bars, retail stores, and office work.

Updated Safeguards for All Workers

All businesses that have employees work in-person must, at a minimum develop certain plans and protocols, train employees, and provide equipment and other protections for employees and customers. Employers are required to implement the plans and protocols and take certain actions upon a positive COVID-19 test in the workplace.

Plans and Protocols

Employers must:

• Develop a COVID-19 preparedness and response plan. Each business must have a plan and make it readily available to employees, labor unions, and customers by June 1, 2020 or within two weeks of resuming in-person activities, whichever is later.
• Designate one or more supervisors to implement, monitor, and report on the COVID-19 control strategies developed in the COVID-19 preparedness and response plan. The supervisor must remain on site at all times when employees are present.
• Adopt protocols to clean and disinfect the facility in the event of a positive COVID-19 case.
• Establish a plan for dealing with a confirmed infection in the workplace. Include in it protocols for sending employees home and temporary closures for all or part of the worksite for deep cleaning.
• Adopt any additional infection-control measures that are reasonable for the type of work performed and in the community where the work is performed.
• Follow EO 2020-36, which prohibits discharging, disciplining, or otherwise retaliating against employees who stay home or leave work when they are at a particular risk of infecting others with COVID-19.

Employee Trainings

Employees must be trained on:

• Workplace infection-control practices;
• How to use personal protective equipment;
• How to notify the business of any symptoms of COVID-19 or a suspected or confirmed diagnosis; and
• How to report unsafe working conditions.

Personal Protective Equipment and Other Physical Safeguards

Employers must introduce new safeguards and provide employees with the appropriate equipment. Employers must:

• Conduct daily entry screenings, which includes a questionnaire.
• Keep workers 6 feet apart to the extent possible. Use ground markings, signs, and physical barriers as appropriate.
• Require face coverings for workers that cannot consistently maintain 6 feet of separation and consider face shields if they cannot consistently maintain 3 feet of separation.
• Provide supplies to employees upon entry to the worksite, at the worksite, and allow time for workers to wash their hands or use hand sanitizer.
• Increase facility cleaning and disinfection, especially for high-touch surfaces and shared equipment.
• Encourage employees to use personal protective equipment and hand sanitizer when on public transportation.
• Promote remote work to the fullest extent possible.

Positive COVID-19 Case

If there is a confirmed or suspected positive COVID-19 case in the workplace, the employer must notify, within 24 hours, the public health department and any co-workers, contractors, or suppliers who may have come into contact with the person. It must also temporarily shut down the operation or area of operations for deep cleaning. This can happen overnight.

Bottom Line

While COVID-19 preparedness and response plans have been required by the last few orders, Governor Whitmer has provided a definitive timeline for businesses to draft and adopt such plans. Now, any business operating in-person (i.e. any business with critical infrastructure work, resumed activity, or minimum basic operations) must have a plan by the later of June 1, 2020 or within two weeks of reopening.

For help drafting your COVID-19 preparedness and response plan or with any questions related to EO 2020-91, please contact:

• Laura Genovich | 616.726.2238 | lgenovich@fosterswift.com
• Cody Mott | 616.726.2239 | cmott@fosterswift.com

For questions or assistance related to COVID-19, please contact your Foster Swift attorney or a member of Foster Swift’s Coronavirus Task Force:

• Mid-Michigan & Southeast Michigan - Matthew Fedor | 248.785.4734 | mfedor@fosterswift.com
• West & Northern Michigan - Laura Genovich | 616.726.2238 | lgenovich@fosterswift.com

This article is current as of time of publication. Due to rapidly changing circumstances and updated regulations, we encourage you to confirm with your attorney and/or other advisors to make sure you are operating with the most current information.