Governor Whitmer’s various Executive Orders (“EOs”) have transitioned from shut-down to phased reopening. Those multiple EOs make the reopening process confusing. This article summarizes the requirements to permissible recall office workers for work outside of their own homes. However, the actual requirements are lengthy and all must be met by the employer. We have collected those requirements in a document that may be obtained HERE.
Office Workers – Phased Reopening
Executive Order 2020-77, since superseded, began the “reopening” process for businesses within the State of Michigan. Only employers in Regions 6 and 8 – the Traverse City quadrant and the Upper Peninsula – were conditionally permitted to recall office workers to return to work. However, it is likely that the conditions will be similar for the remainder of the state when office workers in other parts of the state are allowed to return on a Region-by-Region basis. There are two sets of rules for operating office businesses – one applicable to all employers using “in-person” services, and a second set applicable to office work specifically.
Requirements for Employers Allowing In-Person “Office” Work
Identification of Workers Who May Permissibly be Recalled
Only office workers specifically permitted to be recalled may work at the employer’s premises. Each employer that seeks to recall office workers is responsible to ensure that workers are recalled “only to the extent that such work is not capable of being performed remotely.” EO 96 Section 11.m.
Each employer “must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation … in writing, whether by electronic message, public website, or other appropriate means.” EO 96 Section 6.a.
Most importantly, “[b]usinesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in Executive Order 2020-97 and any orders that may follow from it.” EO 96 Section 6.c.
Workers may also be recalled to prepare the workplace to be in compliance with the various Executive Orders. Workers necessary to prepare a workplace to follow the workplace standards described in Executive Order 2020-97 and to otherwise ready the workplace for reopening. EO 97 Sec 11.o.
Executive Order 2020-97 – Mandatory Requirements
The rules set out in Executive Order 2020-97, as referenced, are extensive, mandatory, complex, and overly long for inclusion here. Rules governing office work are selected and available HERE.
Employers must note that the penalties for non-compliance may be significant. A “willful violation” of the Governor’s Executive orders “is a misdemeanor. See, EO 2020-96 section 22. Likely more concerning, EO 96 also states:
“Any business or operation that violates the rules in sections 1 through 10 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.”
Office facilities to be reopened must comply with the threshold policy adoption, social distancing and safe-work requirements of section 11 of EO 2020-97, which are applicable to all businesses requiring “in-person work.” Those rules, which have been in effect in various forms since the initial stay-at-home order, include among other things:
- Develop an OSHA-compliant COVID-19 preparedness and response plan
- Make that plan available to workers and others by June 1, 2020, or within two weeks of resuming in-person activities,
- Designate one or more worksite supervisors or employees, who must be on-site while workers are present, to implement, monitor, and report on implementation of that Plan
- Provide COVID-19 training to employees that covers, at a minimum:
(1) Workplace infection-control practices.
(2) The proper use of personal protective equipment.
(3) Steps the employee must take to notify the business of any COVID-19 symptoms or of a suspected or confirmed diagnosis of COVID-19.
(4) How to report unsafe working conditions.
- Conduct a daily entry self-screening protocol for all employees entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID19.
- Keep everyone on the worksite premises at least six feet from one another to the maximum extent possible,
- Provide non-medical grade face coverings to employees,
- Require face coverings to be worn when employees cannot consistently maintain six feet of separation,
- Increase facility cleaning and disinfection to limit exposure to COVID-19 and adopt protocols to clean and disinfect the facility in the event of a positive COVID-19 case in the workplace.
- Make cleaning supplies and access to hand washing or sanitizer available to employees upon entry and at the worksite(k) When an employee is identified with a confirmed case of COVID-19, within 24
- Establish a response plan for dealing with a confirmed infection in the workplace, including protocols for sending employees home and for temporary closures to allow for deep cleaning.
- Promote remote work to the fullest extent possible.
- 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 2020-97 Section 1.
Again, there are additional, mandatory work safety requirements set forth in Executive Order 97.
This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.
We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.
Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or firstname.lastname@example.org.