Michigan Governor Gretchen Whitmer issued Executive Order 2020-91 titled “Safeguards to protect Michigan’s workers from COVID-19” on the afternoon of May 18, 2020. The new executive order requires any business desiring to re-open to have prepared a COVID-19 Preparedness and Response Plan (CPRP) in place. The plan must be prepared based on OSHA’s COVID-19 guidance and be made available to employees, unions, and customers by June 1, 2020 or within two weeks of resuming in-person (i.e., normal business) activities, whichever is later. The CPRP may be placed on the company’s website or intranet.
The response portion of the plan must focus on how to deal with a confirmed COVID-19 infection in the workplace, including protocols for sending employees home and for temporarily closing all or part of the worksite to allow for deep cleaning.
Other requirements of the governor’s order include:
1) Designating at least one supervisor to implement, monitor, and report on COVID-19 control strategies addressed in the CPRP. The supervisor must remain onsite “at all times” when employees are present.
2) Providing training to employees including infection controls, PPE, notification of symptoms or a suspected or confirmed diagnosis of COVID-19, and reporting unsafe work conditions.
3) Establishing a daily self-screening procedure for all employees or contractors, including completion of a questionnaire on symptoms and “suspected or confirmed exposure to people with possible COVID-19.”
4) Keeping everyone in the workplace at least six feet from one another to the maximum extent possible, through, e.g., floor markings, signs, and barriers.
5) Providing non-medical grade face coverings to employees, and requiring such coverings when employees “cannot consistently maintain” six feet of separation from other workers.
6) Increasing facility cleaning and disinfection, especially for high-touch surfaces and shared equipment.
7) Developing a protocol for cleaning and disinfecting the facility in event of a positive COVID-19 case in the workplace.
8) Making cleaning supplies available to employees upon entry and at the worksite.
9) Notifying within 24 hours the local public health department and any potentially exposed individuals if an employee is identified with a confirmed case of COVID-19.
10) Maintaining records of compliance with the above requirements that are underlined.
In addition, manufacturers are required in Section 4 of the order to adopt at least the following standard COVID-19 controls:
a) Conduct daily entry screening of anyone entering (employees, contractors, suppliers, etc.) including temperature screening (when non-touch thermometers can be obtained).
b) Create dedicated entry point(s) and ensure physical barriers are in place to prevent anyone from bypassing the screening checkpoint.
c) Promote social distancing.
d) Implement rotational and/or staggered shifts.
e) Stagger break and start times where feasible.
f) Adopt procedures for minimizing personal contact for receipt of material.
g) Create protocols to limit the sharing of tools and equipment to the maximum extent possible.
h) Provide for hand washing and disinfection of common areas.
i) Maintain a central log for symptomatic employees or employees who received a positive test for COVID-19.
Very importantly, the executive order clearly states that the above requirements “have the force and effect of regulations.” The governor’s order states that any facility or operation that violates its mandates 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 the Michigan Occupational Safety and Health Act, MCL 408.1011.
The legal citation referenced is the MIOSHA General Duty Clause. The governor states in her executive order that the requirements will be “vigorously enforced.” They will be, if for no other reason than to pay for fixing the damn roads.
The team of professionals at MEC Environmental Consulting can assist industrial facilities prepare COVID-19 Preparedness and Response Plans and meet the requirements of the Michigan Governor’s Executive Order 2020-91. The executive order, unfortunately, is fraught with ambiguity. This fact underscores the importance of crafting a plan specifically tailored to your facility with terms used in the order clearly defined. If you have any questions or interest in this service, please text or call Michael Carlson at 586.255.1440.
STRICT PENALTIES ARE VOID FOR COVID-19 VIOLATIONS!
Thanks to a court challenge by the Association Builders and Contractors of Michigan and DJ’s Landscape Management of Grand Rapids, a judge has ruled Michigan Governor Gretchen Whitmer’s COVID-19 business penalties were excessive and thus are null and void. In her May 22 order, Whitmer stated that failure of businesses to follow specific COVID-19 prevention measures would trigger the General Duty Clause of the MIOSHA statute. This would mean that any violation of the protocols specified in the order would constitute a felony punishable by fines at least $5,000 up to $70,000 and up to three years in prison.
On June 4, however, Court of Claims Judge Christopher Murray ruled that the two laws on which Whitmer had based her executive order state that any violation is considered a misdemeanor, punishable by up to 90 days in jail and a $500 fine. Wrote Murray:
The incorporation of MIOSHA’s felony charges and increased fines for a violation of the executive order was plainly outside the Governor’s authority.
Patrick Wright, director of the Mackinac Center Legal Foundation, which brought the suit on behalf of the above plaintiffs, praised the ruling, saying the court “rebuked the governor for seeking to make her own law, to dramatically increase potential penalties and to enforce it through an agency she directly controls.”
The other requirements of the May 22 order, however, remain in effect- at least for the time being.