United States: Michigan COVID-19 Workplace Updates: Three Week "Pause" And Office-Based Enforcement

Michigan recently announced two COVID-19 developments that will impact employers and their workplaces.  Most recently, the Michigan Department of Health and Human Services (MDHHS) issued new restrictions for business operations in the state that are set to take effect on November 18 and last through December 8, 2020 (the "Three Week Pause Order").  The Three Week Pause Order followed an announcement late last week by the Michigan Occupational Safety and Health Administration (MIOSHA) of a State Emphasis Program (SEP) focused on in-door activities and venues, including office settings.  The Three Week Pause Order and SEP announcements also include an important reminder to employers of the potential liabilities and penalties if they violate the State's COVID-19 safety requirements.

Three-Week Pause Order

MDHHS has identified gatherings, and in particular indoor gatherings, as the greatest source of spread of COVID-19.  Consequently, the Three Week Pause Order focuses on limiting the spread of COVID-19 by imposing restrictions on in-person business operations.  Effective November 18, 2020 employers must comply with the Three Week Pause Order by, among other things, restricting capacity of indoor and outdoor gatherings at certain types of facilities or venues and entirely prohibiting in-person gatherings at others, including high schools, universities, recreational facilities and entertainment venues.  An infographic showing what is "open" (with restrictions) and "not open" is available here.

The Three Week Pause Order also imposes contact tracing requirements on certain businesses and activities that are allowed to maintain reduced in-person operations.  Specifically, the MDHHS requires those businesses and facilities to "maintain accurate records, including date and time of entry, names of patrons, and contact information" of individuals who enter an employer's facility to aid with contact tracing efforts.  Businesses must collect and maintain this data for 28 days, protect it as confidential to the fullest extent of the law, and furnish it to MDHHS and local health departments upon request.

Finally, the Three Week Pause Order reiterates that employers must comply with face mask usage rules, unless an exception applies.  Pursuant to these rules, and with certain exceptions, an employer must prohibit gatherings of any kind unless it requires individuals in such gatherings, including employees, to wear a face mask, and denies entry or service to all persons refusing to wear face masks while gathered.  Employers may not assume that someone who enters the facility without a face mask falls within one of the recognized exceptions, including those who cannot medically tolerate a face mask, but may rely on an individual's verbal representation that they are not wearing a face mask because they fall within a specified exception.

Failure to comply with the Three Week Pause Order requirements can become a costly expense for employers.  A violation can be considered a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $200.00, or both.  In addition, a violation can also be punishable by a civil fine of up to $1,000 for each violation or day that a violation continues.

State Emphasis Program (SEP) for Office-Based Work

In the first week of November, MDHHS issued a summary of the impact of COVID-19 in the workplace, noting 28 reported cases of COVID-19 outbreaks in office settings and a continued increase week after week.  MIOSHA followed up less than a week later by launching a SEP focused on office-based employers, reminding employers that they are required to create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.  The SEP for office-based employers seeks to educate and obtain compliance with guidelines and rules that protect workers in office locations where community spread of COVID-19 is a risk.  MIOSHA, to enhance compliance with COVID-19 safety practices, has stated that it intends to conduct inspections at workplaces with traditional office settings to review how rules are being followed.  If MIOSHA inspections uncover deficiencies in the employer's COVID-19 preparedness and response plans, it could issue the employer citations and penalties up to $7,000.

Takeaways

The Three Week Pause Order and SEP for office-based work should serve as important reminders to Michigan-based employers of the need to comply with COVID-19 safety practices and of the potential for significant fines and penalties for non-compliance.  Michigan-based employers should review their current policies and practices, including any training materials, to ensure they are in compliance with the most up to date COVID-19 safety requirements.  Epstein Becker & Green, P.C. stands ready to help employers comply with their COVID-19-related safety obligations and answer any related-questions.  Please feel free to contact Adam S. Forman or your Epstein Becker & Green, P.C. attorney.

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