Michigan Department of Health and Human Services Imposes an Emergency Order

On November 15, 2020, the Michigan Department Health and Human Services (MDHHS) issued an Emergency Order under the Michigan Public Health Code, implementing restrictions to control the spread of COVID-19 in the State of Michigan. The restrictions from the MDHHS’ order, which are aimed to restrict gatherings and are summarized below, take effect on November 18, 2020 and will remain in effect through December 8, 2020.

Working Remotely

MDHHS requires that employees work remotely unless it is impossible to do so. MDHHS specifically identifies manufacturing and indoor construction as industries where work cannot be performed remotely.[1] To the extent that work has to be performed in-person, then employers must comply with preventative measures outlined in the Emergency Rules issued by the Michigan Occupational Health and Safety Administration (MIOSHA) on October 14, 2020.

MDHHS’ requirement for work to be performed remotely to the extent possible follows the Rule 5(8) of MIOSHA’s Emergency Rules that requires employers “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” Recently, MIOSHA modified its position to what type of remote work policy MIOSHA will require to the following:

MIOSHA will accept a written policy which indicates that employees are not to perform in-person work activities where the work activity can feasibly be completed remotely.

Employers are obligated to demonstrate infeasibility of remote work.

Employers should include in the remote work determination information which covers at least:

• Which positions/classifications report for in-person work and why they must be physically present in the workplace;
• Reasons that this work cannot be performed remotely, this must include enough specificity to show this analysis has been performed.

This written policy may be part of the employer’s COVID-19 preparedness and response plan. It does not have to be a stand-alone document.

Previously, MIOSHA stated that it would not second-guess the business judgment of employers with regard to their polices prohibiting in-person work to the extent feasible. MIOSHA’s revised position appears to show that it is now looking for employers’ detailed explanations as to why specific positions cannot be performed remotely.

Gatherings at Schools, Colleges, and Universities

Under the MDHHS Order, in-person instruction for students in grades 9 through 12 will be prohibited, unless the students are English Language Learners or participants in special education services. For prekindergarten through grade 8, in-person instruction of students may continue, subject to the decision made by the local school district and local health department. School districts are permitted to gather under the MDHHS Order to provide services to students in need, which may include food distribution, access to internet connectivity, physical and mental health care services, and childcare. Additionally, in-person classes and events at colleges and universities will also be prohibited under the MDHHS order.

Prohibited Gatherings

The MDHHS Order will also prohibit the following gatherings beginning on November 18, 2020:

• Indoor dine-in services at restaurants and bars;
• Group exercise classes or activities;
• Casinos, bowling centers, ice skating rinks, indoor water parks, movie theaters;
• Organized sports, with the exception of professional and college sports;

Permissible Gatherings

The MDHHS Order will allow for the following gatherings to continue in accordance with the specified conditions:

• Indoor gatherings at residential venues must not exceed more than 10 people from no more than two households;
• Gyms may remain open, provided that their occupancy does not exceed 25% of the total limits as established by the state or local fire marshal and there is 12 feet of distance between each occupied workout station;
• Retail stores, libraries, or museums limited to a 30% occupancy as established by state or local fire marshal;
• Restaurants and bars for outdoor dining, takeout, and/or delivery only;
• Hair, nail, tanning, spa, and tattoo salons, provided that services do not involve the removal of face masks, services are made by appointment only, and gatherings in waiting areas are prohibited; and
• Funerals, up to 25 persons.

Given that events are rapidly evolving, we will continue to monitor federal and state legislation and regulations, as well as orders and rules related to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact a Keller Thoma attorney.

[1] On November 6, 2020, MDHHS issued a Guidance entitled “Keeping A Safe Workplace,” which recommended that employers permit their employees to work from home, unless it was “strictly necessary” for an employee to be in person to complete their job duties.