Governor Whitmer | Fraser Blog

Governor Whitmer Reopens Manufacturing with Executive Order 2020-77

On May 7, Governor Whitmer issued Executive Order 2020-77 reopening manufacturing effective May 11. This order continues the “process of gradually resuming in-person work and activities that were temporarily suspended under … prior orders.” This latest order supersedes prior stay-at-home orders, and extends until May 28 prior restrictions and stay-at-home provisions already in effect.

Reopening Manufacturing

EO 77 permits workers “necessary to perform start-up activities at manufacturing facilities” to engage in those activities immediately. The manufacturing employer may permissibly recall all “workers necessary to perform manufacturing activities.” EO 77, section 10(k). Further, “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 suppliers, distribution centers, or service providers along the supply chain whose in-person presence is necessary enable, support, or facilitate the necessary work of another supplier, distribution center, or service provider in enabling, supporting, or facilitating another business’s or operation’s resumed activities” are permitted to be recalled to work, subject to specific provisions identified at section 9(c) of the order.

Manufacturing facilities to be reopened must comply with the threshold social distancing and safe-work requirements of section 11 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:

preparation of a COVID-19 preparedness and response plan,
restriction of the number of workers to those “strictly necessary to perform the in-person work,”
six-foot distancing “to the maximum extent possible,”
the mandatory use of masks when such distancing is not be “consistently maintain[ed]”
face shields are to be “considered” where workers must work within three feet of each other,
increased cleaning and disinfection, and
screening policies “to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person” with a positive COVID diagnosis.

Again, there are additional “in-person” work requirements applicable to all businesses.

Additional Manufacturing-Specific Requirements

Further, “(m)anufacturing work may not commence … until the facility at which the work will be performed has been prepared to follow” strict workplace standards and protocols set forth at section 11(k) of the Order. In addition to the prior procedures, reopening manufacturing facilities must:

“1. 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.

2. Create dedicated entry point(s) at every facility for daily screening as provided in subprovision (1) of this subsection, 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:

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. Symptoms of COVID-19.

D. Steps the worker must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19.

E. 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.

F. Rules that the worker must follow in order to prevent exposure to and spread of the virus.

G. 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 times 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 he or she is displaying symptoms of COVID-19.”

As the Governor’s Executive Orders continue to issue we anticipate that further sectors of the economy will be addressed. Please contact your Fraser Law Firm lawyer for timely assistance.

This alert serves as a general summary, and does not constitute legal guidance. 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 dhouston@fraserlawfirm.com.

Remote Notarization and Witnessing Extended Through June 30, 2020

To permit the execution of important legal documents, while reducing face-to-face exposure during the COVID-19 pandemic, Michigan Governor Whitmer issued Executive Order 2020-74. The new Executive Order went into effect on May 5, 2020 at 9:37 p.m. and permits the remote notarization and witnessing of documents until 11:59 p.m. on June 30, 2020. Notarial commissions expiring between March 1, 2020 and June 30, 2020 are now extended until June 30, 2020.

Another helpful change in the Executive Order is the extension of time within which witnessed documents have to be transmitted between the signatory and the witnesses from 24 to 72 hours. Executive Order 2020-74 rescinds a similar order, Executive Order 2020-41, that was set to expire at 11:59 p.m. on May 6, 2020. A summary of the Executive Order is attached.

Chair of Fraser Trebilcock’s Trusts and Estates Department and serving as Secretary/Treasurer of the firm, attorney Marlaine C. Teahan is a Fellow of the American College of Trust and Estate Counsel, and is the past Chair of the Probate and Estate Planning Section of the State Bar of Michigan. For help with your estate planning needs, contact Marlaine at 517-377-0869 or mteahan@fraserlawfirm.com.

Governor Whitmer Signs Executive Order 2020-58; Suspends Certain Timing Requirements for the Commencement of Civil and Probate Actions and Proceedings

On April 22, 2020, with Executive Order 2020-58, Governor Whitmer suspended deadlines applicable to the commencement of all civil and probate actions and proceedings from March 10, 2020 until the end of the declared states of disaster and emergency. The EO is consistent with the Supreme Court’s Administrative Order 2020-3 and closes any gaps that might exist between the Court’s power to modify court rules and its inability to modify existing statutory notice requirements and other prerequisites related to deadlines for such filings. While the Governor cannot perform legislative functions, the Emergency Management Act provides that executive orders have the force and effect of law. The Court’s Administrative Order and the Governor’s Executive Order work together to effectuate a suspension of these specific deadlines during the COVID-19 crisis.

An interesting difference between EO 2020-58 and AO 2020-3 exists in the effective dates. While the Administrative Order suspends deadlines until the declared state of emergency ends, EO 2020-58 suspends deadlines until both the declared states of emergency and disaster end. The following timeline provides helpful background:

March 10, 2020: Governor Whitmer first declared only a state of emergency in EO 2020-4;
March 23, 2020: The Michigan Supreme Court addressed the suspension of certain deadlines applicable to civil and probate actions and proceedings in Administrative Order 2020-3 during the declared state of emergency, when no declared state of disaster existed; and
April 1, 2020: Governor Whitmer rescinded EO 2020-4, declared a state of disaster and expanded on the already declared state of emergency in EO 2020-33.

Presumably, such declared states will end simultaneously; however, it will be interesting to see if Executive Order 2020-58 provides for tolling of these deadlines that extend past the Court’s extension of deadlines. More details about Supreme Court Administrative Order 2020-3 can be found at: https://www.fraserlawfirm.com/blog/2020/03/michigan-supreme-court-extends-civil-and-probate-filing-deadlines-due-to-covid-19/.

If you have a question about filing deadlines or about the filing of a civil or probate action or proceeding, contact your attorney for guidance. Fraser Trebilcock’s attorneys are working steadily through this crisis to address all your questions and legal needs.

Navigating Executive Order No. 2020-54 (“Order 54”); The Eviction and Land Contract Forfeiture Moratorium

UPDATE: On Monday, April 20, 2020, Governor Gretchen Whitmer signed Executive Order 2020-54, extending the duration of relief in prior Order 2020-19 through May 15, 2020.

With Executive Order 2020-54, Governor Whitmer enacted a “temporary prohibition against entry to premises for the purpose of removing or excluding a tenant or mobile home owner from their home,” which can fairly be described as an “eviction moratorium.”

The text of Order 54 largely mirrors Order 19 analyzed below, save for minor changes to Section 3 thereof that seek to clarify that the traditional landlord’s “Notice to Quit” for non-payment of rent can no longer threaten to evict or re-take possession. As such, a customized demand for payment of rent will be likely for the duration of Order 54. This is also discussed below.

This is a brief summary and does not constitute legal advice. You can view our summary of Executive Order 2020-19 here. We encourage you to review Executive Order 2020-54 in its entirety, and contact your Fraser Trebilcock attorney for any questions you may have.

On Friday, March 20, 2020, Governor Whitmer signed an executive order enacting a “temporary prohibition against entry to premises for the purpose of removing or excluding a tenant or mobile home owner from their home,” which can fairly be described as an “eviction moratorium.” It was intended to stay in place until the end of the night on Friday, April 17, 2020, which effectively left it in place until Monday, April 20. On Monday, April 20 it was rescinded, and the nearly identical Order 2020-54 (“Order 54”) took its place.

Order 54 prohibits landlords and land contract vendors from evicting tenants or vendees until after May 15, 2020. It also prohibits personal delivery of demands for payment of rent, prohibits the use of Notices to Quit and other forfeiture notices that threaten eviction or seek to take possession. It has provisions that apply to court officers as well. It is both detailed and summarized below.

Legal Basis: Like all the COVID-19 executive orders, Order 54 follows the March 10, 2020 Executive Order 2020-4 and cites to updated versions, which declared a state of emergency across Michigan. It cites Michigan’s Constitution (Const 1963, art 5, sec 1) (vesting executive power in the governor) for support, along with Michigan’s 1976 Emergency Management Act, codified at MCL 30.401-421, and its 1945-era Emergency Powers of the Governor Act, codified at MCL 10.31-33 (please see links below to these statutes). Order 19 states:

“[t]he current states of emergency and disaster would be exacerbated by the additional threats to the public health related to removing or excluding people from their residences during the COVID-19 pandemic. To reduce the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders, it is reasonable and necessary to provide temporary relief from certain eviction-related requirements.”

In sum, the Governor has determined that the personal interactions necessitated by the eviction process, and the possibility of people being put out “on the street,” so to speak, presents avoidable risks. Thus, the landlords of Michigan and those who sold residential property on land contract are being called on to contribute resources to the public good. At the time of writing and publication of this article, this contribution is uncompensated. Without addressing or resolving those issues, this article simply identifies what is prohibited and places those prohibitions into the context of the ordinary procedures for evictions or summary land contract forfeitures.

Prohibited Acts: Order 54 prohibits or regulates the following, described as numbered under the Order itself. The terms of Order 54 are summarized here:

No person shall remove or exclude a residential tenant, people holding under that tenant (such as roommates, family members, and likely any other hangers-on), land contract vendees (buyers) or those holding under those vendees from the residential premises in question until after May 15, 2020. This does not apply if the “tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property. This order should be broadly construed to effectuate that purpose.”

In other terms, regardless of where one was at in an eviction or land contract forfeiture process, actual removal or execution on a Writ of Restitution or other eviction order is stayed, barring exception. The “severe risk” exception is discussed briefly in the “What This Means” section below.

“This order does not affect the inherent power of a judge to order equitable relief.”

It is uncertain at this time whether this section intends to create a judicial carve out that would allow the equitable relief of eviction in circumstances not contemplated under Order 54, or whether this is a statement intended to limit the scope of Order 54 and prevent it from being mis-applied in commercial or other contexts. The later seems more likely, but this section is open to some interpretation.

This section, translated, provides that tenants and vendees still have to pay, and will still owe money for the time they occupy the property in question. In addition, landlords and vendors may issue written demands for payment of rent,, but they may no longer mail notices to quit (and by extension, other forfeiture notices) that threaten eviction or re-possession as a remedy. These demands for rent cannot be personally delivered or served during the moratorium period – they must be mailed or e-served if allowed under the applicable lease.

It is highly unlikely that any judge will construe this section as prohibiting a landlord or vendor from knocking on a tenant’s door to conduct other business, to check on a tenant, or to provide assistance to a tenant. The landlord just cannot knock on a tenant’s door to deliver the “bad news” of a demand letter, and in no circumstances may a landlord deliver or send a notice to quit or other document threatening eviction. The damages to the landlord for non-payment of rent continue to accrue, however.

Further, no person may enter residential property to remove a tenant, vendee or anyone claiming under them, even if they have already obtained a Writ of Restitution or other eviction order. Like Section 1 above, there is an exception where the tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property.

This is largely a re-hash of Section 1: if no person can remove or evict under Section 1, it follows that no person may enter a rental unit or residential property subject to a land contract for those purposes.

There is a moratorium preventing any court officer, sheriff or deputy from serving process (i.e., new lawsuits) that seek eviction of forfeiture as a remedy.

This section governs law enforcement, as opposed to the landlords or land contract vendors. It does not, on its face, bar lawsuits that only seek money damages. Assuming your local district court will take the filing and issue process (which remains uncertain at this time), one may theoretically initiate a new contract-based suit for money damages and seek to amend to add an eviction remedy when the moratorium is lifted.

“[N]o person may deny a mobile home owner access to their mobile home, except when the mobile home owner’s tenancy has been terminated because the mobile home owner poses a substantial risk to another person or an imminent and severe risk to property.”

This section basically brings mobile home parks under the same prohibitions applicable to residential landlords and land contract vendors.

For 30 days after the restrictions in sections 1 through 6 expire, courts have latitude to adjourn proceedings, toll redemption periods, toll limitations periods, and extend deadlines.

This appears to be a “housekeeping” section granting court latitude with scheduling that likely already would be found to exist under Michigan’s rules of Court and revised Judicature Act.

As used in this order, all terms have the meaning provided by the Revised Judicature Act.

This section rescinds Order 19 .
This section provides that a willful violation of this Order is a misdemeanor.

This section requires little or no translation.

A copy of this order will be transmitted to the State Court Administrative Office.

This is a mechanical section that will mean little to landlords or land contract vendors.

What This Means: Landlords and those who sold residential property on land contract must either challenge the legality of Order 54, or wait out all evictions until it expires or is amended to allow evictions.

Order 54 excepts situations where a tenant is creating substantial risk to another person or an imminent and severe risk to property. While Order 54 is silent as to what those situations are, the case-by-case determinations that a court might make in that regard will be governed and informed by existing statute and common law. Owing to the numerous pronouncements in Order 54 regarding the necessity for people to shelter in place, along with the “Stay At Home” Order issued March 23, 2020 (and its successor orders), it seems clear that having a tenant or vendee with COVID-19 will not likely be deemed an exception, unless that person is taking assaultive or offensive actions to spread it to others in the building. If you are confronted with that situation, nothing in Order 54 prevents a landlord from calling the police along with pursuing legal remedies.

Landlords may still mail and e-mail demands for payment, but (unlike Order 19 that was rescinded), landlords and land contract vendors may no longer deliver, mail, email or otherwise tender notices to quit, notices to terminate tenancies and related land contract forfeiture notices. This is the substantive change in Order 54 that may create problems for landlords and land contract vendors. Order 54 does not technically prohibit a contract-based lawsuit against a tenant or vendee for money damages, but your counsel may advise that, in these uncertain times, such a suit may be of limited utility, unless it is later amended to add the eviction remedy.

In the meantime, Michigan’s prohibitions against landlord self-help and retaliatory eviction remain in place. While it was never a good time for landlords to take certain matters into their own hands before the current state of emergency, now is an even worse time to do so. It is anticipated that courts would treat lockouts or landlord utility shutoffs or service denials harshly at this time. It is unknown whether courts would likewise be lenient with landlords regarding repair issues at this time, but there are good arguments to support a rule of reason in that regard.

In Conclusion: Every situation is different. This general discussion cannot be used as a substitute for legal advice, pursuant to an established attorney-client relationship. Thus, contact your legal counsel or the undersigned if you have questions. The attorneys at Fraser Trebilcock remain ready and able to serve.

Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at jroberts@fraserlawfirm.com and (517) 482-0887.

Michigan Temporarily Suspends Tickets for Expired Driver’s Licenses and Registrations

Late in February, the Secretary of State’s office advised me that I had to renew my license in person this year. Dreading a visit to the Secretary of State’s office, I decided to wait until closer to my birthday at the end of March. Unfortunately, the following events have kept that visit from happening:

March 10 – A state of emergency is declared in Michigan due to the COVID-19 pandemic.
March 13 – The Secretary of State (“SOS”) announced that in-person visits were restricted to critical services only, with no in-person license renewals.
March 23 — Executive Order 2020-21 (“Stay Home, Stay Safe”) was signed, preventing an in-person visit before my birthday.
March 24 – Online, I made an appointment at my local SOS office for April 27^th.
April 9 — Governor Whitmer extended Stay Home, Stay Safe through April 30^th with Executive Order 2020-42 and, within hours, SOS notified me by email that my appointment was cancelled.

If you’re in a similar position, don’t worry. On April 13, 2020, Governor Whitmer issued Executive Order 2020-EO-47 which temporarily extends the validity of certain driver’s licenses, state ID cards and vehicle registrations. To the extent you can, you should complete your license renewal and vehicle registration at the Secretary of State’s website. For State ID cards, operator’s licenses, and chauffeur’s licenses that expire between February 1 and May 31, 2020, you have until June 30, 2020 to renew.

Medical certification requirements are temporarily suspended for Group A, Group B, and Group C designations until June 20, 2020, but you should carry a paper copy of an otherwise-valid medical certificate showing an expiration on or after March 1^st. If a commercial vehicle has an otherwise-valid vehicle registration that expired on or after Mach 1^st, operator and chauffeur license holders with Group A, Group B, or Group C may operate the vehicle as though it had a valid vehicle registration until June 30, 2020.

Until June 30, 2020, law enforcement will not arrest any person or impound any vehicle as a result of a vehicle registration, operator’s license, or chauffer’s license that expired on or after February 1, 2020. Late fees for having such expired documentation will not be assessed so long as renewals occur by June 30, 2020. This Executive Order is no panacea; nothing in EO 2020-47 prevents the Secretary of State from suspending or revoking an operator’s or chauffeur’s license, commercial learner’s permit, vehicle designations, or endorsements or an operator’s or chauffeur’s license pursuant to the Michigan Vehicle Code. Further, this relief does not apply to individuals who had their driving privileges suspended or revoked for traffic offenses or who, since their last medical certificate was issued, have been diagnosed with a medical condition that would disqualify them from operating a commercial vehicle, or who have developed a condition that requires an exemption or Skill Performance Evaluation from the Federal Motor Carrier Safety Administration.

Until I can renew my license, I’m tempted to carry a copy of EO-2020-47 in my car; however, my current, expired license is probably all I need. Meanwhile, I’ve got my new SOS appointment all set and hope to have my renewed license in June. To avoid delays, it is advisable to make an appointment at the Secretary of State’s website to update your license, registration and other documentation in advance of June 30, 2020.

Governor Whitmer Allows Michigan Liquor Control Commission to Buy Back Liquor from Certain Liquor License Holders

In Executive Order 2020-46 issued April 13, 2020, Governor Whitmer authorized the Michigan Liquor Control Commission (“Commission”) to offer a licensee a cash buyback of any spirits a licensee ordered from the Commission and received and accepted from an Authorized Distribution Agent before March 16, 2020. When a licensee opts into this buyback program, the Commission must advance to the licensee 100% of the purchase price of those spirits that are in the licensee’s inventory.

The Commission may accept buyback requests, by email or on its website, only from licensees that hold one of the following license types: Class C, B-Hotel, G-1, Club, Continuing Care Retirement Center, Aircraft, Watercraft, and Train License. The Commission must begin accepting requests on its website as soon as reasonably possible, and must accept all requests made by 5:00 pm on April 17, 2020.

Upon advancing cash to a licensee pursuant to the buyback program, the Commission will hold legal title to all spirits purchased by the licensee before March 16, 2020 that are in the licensee’s inventory at the time the licensee opts into the buyback program. But, in recognition of the risks of COVID-19 infection and transmission associated with in-person contact, the Commission must not take physical possession of any such spirits except as provided in the Order or any Order that may follow from it. The licensee must take all reasonable care to account for and preserve the inventory of any such spirits.

A licensee that opts into this buyback program may, at any time until the Commission takes physical possession of spirits it owns, repay to the Commission the full amount advanced to the licensee. Upon repayment of the full buyback amount, the licensee will again hold title to the spirits in its possession.

The Commission may take physical possession of any spirits held by any licensee to which the Commission holds legal title at any time later than 90 days after the end of the declared states of emergency and disaster.

The Order is effective immediately, and can be viewed here.

Edward J. Castellani is an attorney and CPA who represents clients involved with alcohol beverages as a manufacturer, wholesaler, or retailer. He may be contacted at ecast@fraserlawfirm.com or 517-377-0845.

Estate Planning and More Can Continue from Home Under Executive Order 2020-41

Executive Order 2020-41 Allows Remote Witnessing and Notarization

Electronic signatures, remote notarizations, remote witness attestations and acknowledgments, and remote visitations are now permitted under Executive Order 2020-41, signed by Governor Whitmer on April 8, 2020. This Executive Order is effective through May 6, 2020, and ensures that necessary transactions and interactions may continue to occur during this time of crisis without unduly compromising the health and safety of those performing these transactions.

This means that you can sign important documents, like wills, trusts, durable powers of attorneys and designations of patient advocate, deeds, and other business and financial documents requiring a witness or notary safely from your own home. Further, notaries public and necessary witnesses can handle these transactions safely from their homes, too.

There are specific conditions that must be met under Executive Order 2020-41, but the attorneys at Fraser Trebilcock are ready and available to help you. Now is the perfect time to contact your attorney to discuss updating your estate planning documents and getting your business and financial affairs in order, all from the comfort and safety of your own home.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

If you would like to talk with an attorney about putting legal plans in place, contact attorney Melisa M. W. Mysliwiec. Melisa focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at mmysliwiec@fraserlawfirm.com or 616-301-0800.

Governor’s Executive Order Protecting Workers Exposed to Coronavirus From Discharge or Retaliation

Governor’s Executive Order Protecting Workers Exposed to Coronavirus From Discharge or Retaliation

Today, April 3, Governor Whitmer signed Executive Order 2020-36 (“EO-36”). Under the Governor’s prior “stay home” order, EO 2020-21. Employers were permitted to continue operations in essential industries and under other specified situations, see, Employer Actions to Comply with Michigan Stay-At-Home Order. The original stay home order did not address whether and under what situations employees permitted to work could refuse to report, and what actions employers were permitted to take to require those employees to report.

Today’s EO-36 addresses some of those questions. First, EO-36 prohibits any employer from discharging, disciplining, or retaliating against an employee who is otherwise permitted to work, but who stays home from work because the employee or a person in contact with the employee has symptoms of or tests positive for COVID-19.

The EO also expands on the Governor’s prior “stay home” order (EO 2020-21) by declaring as public policy that any person who has symptoms of the virus or tests positive, or who is exposed to someone symptomatic or positive, should remain at home. We interpret this Order to require an employee of a permissibly-continuing business performing in-person work to stay at home, and that the Employer of such persons will screen to prevent the reporting to work of such persons. Health care, first responder and other groups are exempted meaning that those employees are expected to continue to report to work.

Persons Addressed by EO-36

Key to the scope of this Order are the persons addressed. The Order identifies two groups of persons:

Positive Tested or Display Symptoms. Persons who themselves “test positive for COVID-19 or who display one or more of the principal symptoms of COVID-19″ are referenced in “Section 2” of the Order. These persons are subject to the longest-duration stay-home requirements.
Close Contact. Persons who “have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19″ also are subject to specific stay home conditions.

For the purpose of this article, persons in these groups are here referred to as “Presumed Infectious.” Different and specific “stay home” periods are established for each Presumed Infectious group identified. Note that all key terms used in the Executive Order are defined there.

No Adverse Employment Action Against Presumed Infectious Employees

Presumed Infectious employees otherwise permitted to work who absent themselves to stay home are protected where their health status falls into either of the categories described in the immediately prior section of this article.

A Presumed Infectious protected employee must be treated by the Employer “as if he or she were taking medical leave under the Paid Medical Leave Act” (“PMLA”). Leave used may be debited and may be unpaid if the worker has exhausted paid leave entitlement. Significantly, we conservatively interpret EO-36 to mean that the length of such leave is unlimited by the amount of leave that a protected employee has accrued under the PMLA or any leave provision of the employer’s policy. EO-36 expressly states that the leave right extended to the employee under that Emergency Order “must extend, whether paid or unpaid, as long as the employee remains away from work within the time periods” specifically set forth in the two situations identified above.

Employers are prohibited from discharging, disciplining, or otherwise retaliating against a protected employee during the period of their protected status. The details of the duration of protected status are set out in Sections 2 and 3 of the Executive Order.

Workers Who are Not Protected Who Fail to Report

EO-36 does not expressly sanction discipline or discharge for employees who are permitted and expected by their Employer to work, but who fail or refuse to report. However, the Executive Order does so indirectly. The EO states:

“Nothing in this [EO-36] shall be taken to prevent an employer from discharging or disciplining an employee (1) Who is allowed to return to work … but declines to do so … or (3) [f]or any other reason that is not unlawful.”

Workers Exempted from Protections of EO-36

The following are expressly exempted from EO-36, with the result that they cannot refuse to report to work even if they meet the criteria set out in the Order:

“(a) Health care professionals.

(b) Workers at a health care facility…

(d) Child protective service employees.

(e) Workers at child caring institutions…

(f) Workers at correctional facilities.”

Specification of Further Stay-at-Home Provisions For Those Possibly or Actually Infected, Including Employer Screening of In-Person Workers

EO-36 expands non-employment provisions of the prior stay home order. Under EO-36, no person who meet the criteria as “Presumed Infectious Persons” (test positive, display symptoms, or were exposed to someone meeting these criteria) should leave their home except to “the extent absolutely necessary to obtain food, medicine, medical care, or supplies that are needed to sustain or protect life” or for permitted recreational purposes. Further, Presumed Infectious persons who elect to leave home “should wear some form of covering over their nose and mouth, such as a homemade mask, scarf, bandana, or handkerchief.”

There is no qualification limiting the scope of this section of EO-36 other than the exempt industry groups identified above. Thus, we conservatively interpret this enhanced stay home directive to mean that Presumed Infectious employees providing in-person services to Employers whose businesses are otherwise permissibly continuing to operate must not report to work. Similarly, while EO-36 does not expressly so provide, we conservatively conclude that Employers who continue to operate must take reasonable measures to screen employees continuing to provide in-person services and bar them from entering the Employer’s premises for any reason.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Pharmacists Allowed to Dispense Emergency Prescription Refills Under EO 2020-25

On March 25, 2020, amid the Coronavirus (COVID-19) outbreak, Governor Whitmer signed Executive Order 2020-25 to address the critical need to pharmacy services. This Executive Order gave pharmacists the authority to dispense up to a sixty (60) day supply of emergency prescription refills to patients. This Executive Order, which took effect immediately, only applies to non-controlled substances and can only be dispensed if, “in the pharmacist’s professional judgment, failure to refill the prescription might interrupt the patient’s ongoing care and have a significant adverse effect on the patient’s well-being.” When dispensing this medication, your pharmacist must tell you that he or she is doing so pursuant to this Executive Order.

This Executive Order also requires insurers to cover these emergency prescription refills and gives pharmacists the discretion to substitute therapeutically equivalent medications without prescriber approval if there are critical shortages. The pharmacist must inform the patient of any substitution.

Pharmacists are also allowed to dispense COVID-19 treatments according to government-related protocols established by the Center for Disease Control and Prevention, National Institute of Health, or Department of Health and Human Services under this Executive Order.

Fraser Trebilcock Attorney Amanda S. Marinkovski specializes her practice in business and tax law, bankruptcy, family law, estate planning, litigation, and real estate law. You can reach her at (517) 377-0897, or at amarinkovski@fraserlawfirm.com.

Employer Actions to Comply With Michigan “Stay-at-Home” Executive Order 2020-21

Employer Actions to Comply with Michigan “Stay-at-Home” Executive Order 2020-21

Effective Tuesday March 24, 12:01 am, Employers are with certain exceptions, ordered by Governor Whitmer to cease all operations that cannot be performed by employees working remotely from their homes. “Individuals” residing in Michigan, including employees, are similarly ordered to “stay at … their residence,” again with certain exceptions. To emphasize the importance of the order and to give it the most broad effect, it is to “be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.“[1] EO 2020-21 §1 (referred to as the “EO”). This article focuses on the obligations of Employers employing workers in Michigan. The Order is available here.

EMPLOYER OBLIGATIONS

Fundamental Prohibition on In-Person Work

The specific prohibition on in-person work in EO Section 4 states in its entirety:

“No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”

Thus, all in-person work must be:

Necessary to sustain or protect life, or
Necessary to conduct the minimum basic operations of the Employer.

Workers expected to perform “minimum basic operations” as permitted under Section 4 are those “whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.” EO §4.b.

Critical Infrastructure Workers are Permitted to Perform In-Person Work

Employees permitted to engage in in-person work are referred to as “critical infrastructure workers,” adopting the terms used in federal Coronavirus enactments. EO §4.a. Critical infrastructure workers include workers so designated under federal guidance issued March 19, 2020, available here. Federal guidance adopted in the EO limits critical infrastructure workers to those “who conduct a range of operations and services that are essential to continued critical infrastructure.” Id p. 1. This federal guidance includes an industry-specific discussion, “Identifying Essential Critical Infrastructure Workers.” Id., pp. 4 et seq. Thus, workers in the identified sectors may or may not be allowed to engage in in-person work, and it remains the responsibility of the Employer to determine that each “critical infrastructure worker” is properly so categorized. The Michigan EO adopts the following sectors as identified in the federal guidance:

Health care and public health.
Law enforcement, public safety, and first responders.
Food and agriculture.
Energy.
Water and wastewater.
Transportation and logistics.
Public works.
Communications and information technology, including news media.
Other community-based government operations and essential functions.
Critical manufacturing.
Hazardous materials.
Financial services.
Chemical supply chains and safety.
Defense industrial base.

The Michigan EO adds to the above list the following sectors:

Child care workers serving dependents of critical infrastructure workers.
Workers in designated supply and distribution centers, including workers needed to supply or distribute to other such centers. There are specific criteria for this category and “[b]usinesses … that abuse their [supplier/distributor] designation authority shall be subject to sanctions to the fullest extent of the law.” EO 9.b.6.
Insurance industry.
the provision of “food, shelter, and [life] necessities” to persons who are (a) economically disadvantaged, (b) otherwise needy, (c) disabled, or who (d) need assistance due to the Coronavirus emergency. The Governor, in guidance issued after the EO, clarified that hotels and places of lodging provide critical infrastructure to the extent that the customers of those businesses are providing mitigation or containment efforts or are themselves critical infrastructure workers of other employers.
Labor union officials including benefit fund administrators.

Obligations of Employers Intending to Continue Operations

Duty to Designate Critical Infrastructure Workers

Most employers that continue to conduct in-person operations under the EO must designate and inform those workers. Designations must be in an ordinary or electronic writing after March 31, until that date, designations may be oral. EO §5.a.

Employer operations involving the following situations are exempt from required designations:

“health care and public health” services;
“necessary government activities;” and,
community shelter, food and life necessities operations as described above.

Duty to Suspend Other Operations

An Employer that continues to operate with permitted in-person workers must suspend all other operations. EO § 5.b.[2] As an example, a hotel providing lodging to persons who are themselves critical infrastructure workers of other employers must suspend all non-lodging services and amenities such as in-service restaurant and gym access.

Since compliance with EO § 5.b. is a requirement of permissibly performing any in-person work, the improper continuation of “other operations” would appear to put at risk the permissibility of otherwise-allowed in-person work performed by critical infrastructure workers.

Adoption of Workplace Social Distancing Practices

The operating Employer must adopt social distancing procedures including adoption of the most restrictive practices on workplace access, promoting remote work “to the fullest extent possible,” screening and requiring symptomatic workers and workers with possible exposure to COVID-19 to remain away from the workplace, and engaging in robust workplace hygiene and disinfectant practices. Stringent and aggressive fulfillment of this duty may predictably be expected under the General Duty clause of the Occupational Safety and Health Administration Act (OSHA) in later review actions.

We recommend in addition to the EO requirements that the Employer immediately (1) adopt these required social distancing policies in writing, (2) where workers have public contact, adopt policies that apply social distancing requirements to the public persons coming in contact with workers, including pre-access screening for travel, exposure and other risk factors, and (3) post, publicize, and train all workers of all such policies and requirements.

Additional Workplace Safety Guidance and Advice

The Centers for Disease Control and Prevention (CDC) are maintaining and updating a useful website, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease. Topics include “Maintaining Healthy Business Operations” and “Maintaining a Health Work Environment.”

PENALTIES AND DURATION

The stated penalty for violation is minor, specifically, a “willful violation” is designated as a misdemeanor – criminal – violation.

The Order as presently issued expires April 13, 2020 at 11:59 pm.

[1] All italicized language when quoting the Executive Order is added as assistance to the reader.

[2] Note while EO § 5.b. literally references, and thus permits, only activities “to sustain or protect life,” we interpret this provision, which applies to employment of critical infrastructure workers, also to include and permit the employment of workers designated as necessary to conduct minimum basic operations of the Employer.