Emergency Orders Requiring COVID-19 Screenings and Social Distancing Plans

In an effort to further combat and prevent the spread of the novel coronavirus disease 2019 (“COVID-19”) which threatens to overwhelm Michigan’s health care system, on March 23, 2020, Governor Whitmer issued Executive Order 2020-21 (the “Executive Order”) to impose certain restrictions and limitations on certain in-person work and directing individuals to remain at their home or residence except under limited circumstances (e.g., certain outdoor recreational activities, purchasing groceries, caring for a family member, etc.). Among these restrictions, the Executive Order prohibits persons and entities from operating a business or conducting operations that require workers to leave their homes or places of residence to attend work except to the extent that those workers are “necessary to sustain or protect life or to conduct minimum basic operations.”

Executive Order Details

The Executive Order further requires business and operations conducting in-person operations to adopt social distancing practices and other mitigation measures to protect workers and patrons. Such measures include restricting the number of workers present to the minimum extent necessary, promoting remote work, keeping workers, patrons and customers at least six feet apart from one another to the maximum extent possible, increasing facility cleaning and disinfection standards of the business facility, adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19, and other social distancing practices and mitigation measures recommended by the Centers for Disease Control (“CDC”).

Oakland County Emergency Order

Following the Executive Order, Oakland County issued Amended Emergency Order 2020-5 (“Oakland Emergency Order”), which effective March 25, 2020 through April 13, 2020, requires businesses and operations that remain open under the Executive Order (other than health care organizations with an infection control program in place) to take the following precautions:

1. Develop and implement a daily screening program for all staff. The screening criteria includes asking staff members:
   • Whether they have symptoms including, but not limited to, fever, cough, shortness of breath, sore throat, or diarrhea. If a touchless thermometer is available, the Oakland Emergency Order strongly recommends the staff member’s temperature be checked in lieu of verbal confirmation for lack of fever.
   • Whether they have had any close contact in the last 14 days with someone with a diagnosis of COVID-19; and
   • Whether they have traveled internationally or outside of Michigan in the last 14 days.
   • If an individual answers “yes” to any of the screening criteria questions, the individual must be excluded from the business’s facility until:
     • At least 72 hours have passed with no fever without the use of fever-reducing medications, and other symptoms have improved, and at least 7 days have passed since the individual’s symptoms first appeared;
     • 14 days have passed since the individual had close contact with someone diagnosed with COVID-19; or
     • 14 days have passed following travel unless the travel was due to commuting from a home location outside of Michigan to work on a regular basis.
2. Develop and implement a plan to manager and control social/physical distancing for employees working alongside one another and for customers waiting in line within or outside the business.
3. Limit capacity inside facilities to provide for social distancing of customers and between customers and employees, including but not limited to visual markings and signage, entrance limits and specialized hours.
4. Publish the Oakland Emergency Order at the entrance of the facility and to the members of the public at large by all reasonable means available.

Washtenaw County and Wayne County have each since issued Emergency Orders that are substantially similar to the Oakland Emergency Order with few variances, including:

• Under Washtenaw County’s Public Health Emergency Order (“Washtenaw Emergency Order”) and Wayne County’s Public Health Emergency Orders (“Wayne Emergency Orders), a worker may be excluded for travel “via airplane” internationally or domestically in the last 14 days.
• The Washtenaw and Wayne Emergency Orders each exempt from their orders hospitals, healthcare facilities, EMS, other organizations that employ healthcare workers in the inpatient or outpatient setting, all providers and support staff involved in patient care, and local and state public health staff actively involved in the COVID-19 response.
• Wayne County has issued two Public Health Emergency Orders, one which applies to essential businesses (20-02), and one for childcare centers (20-01). The emergency order for childcare centers require childcare centers to perform screening checks of all staff, children, parents, guardians and essential visitors. In addition, non-essential visitors are prohibited from entering the childcare center.

Businesses that remain open under the Executive Order must exercise caution to ensure that its screening practices do not accidentally run afoul of the Americans with Disabilities Act and other pertinent laws designed to protect workers and members of the public. Kerr Russell has worked diligently with essential business clients to develop compliant written policies, procedures and checklists that maintain the safety and well-being of workers and the public.

The Executive Order is available HERE. The Emergency Orders are available as follows: Oakland County, Washtenaw County, Wayne County – Essential Businesses, and Wayne County – Childcare.

For more support and information relating to COVID-19, please visit the Kerr Russell COVID-19 Resource Center. If you have questions relating to this article or other matters, please contact a Kerr Russell attorney.

Kathleen A. Westfall maintains a business practice focused primarily on helping clients to navigate complex licensing and regulatory issues related to state and federal health care laws and regulations. She assists health care clients with a number of corporate and contractual issues and disputes, including third party payor audits, insurance coverage matters, and reviewing, drafting and negotiating various contractual agreements. She also represents health care professionals and facilities in connection with licensing investigations and other enforcement actions by state and federal agencies.

Mark C. Knoth chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.

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