Advocacy News – November 16, 2020
In a rare Sunday night press conference, Governor Whitmer and the Michigan Department of Health and Human Services (MDHHS) announced new COVID-19 restrictions that will take effect on Wednesday at 12:01 a.m.
The new MDHHS Emergency Order (“Order”) shutters restaurants and bars for indoor dining and drinking (i.e., limits their operations to take-out and outdoor dining), theaters, movie theatres, stadiums, arenas, bowling centers, ice skating ranks, indoor water parks, bingo halls, casinos, arcades and group exercise classes. The Order is effective through December 8.
Under the Order, child care centers, hair salons, retail shops and preschool through eighth-grade schools will be open (i.e., subject to local control). Outdoor recreation will continue to be allowed, and gatherings of up to 25 people can take place at funerals. Gyms and pools can be open for individual exercise.
Indoor gatherings are prohibited at residential venues, except where no more than 10 persons from no more than 2 households are gathered. Indoor gatherings are prohibited at non-residential venues under the Order.
Outdoor gatherings are permitted at residential venues insofar as they are limited to 25 or fewer persons comprised of no more than three households. At non-residential venues, 25 or fewer persons can gather at a venue without fixed seating, but attendance must be limited to 20 persons per 1,000 square feet, including within any distinct area within the event space. For venues with fixed seating, 25 or fewer may gather but attendance must be limited to 20 percent of the venue’s seating capacity.
Regarding remote work, the new Order does not include any new changes. However, previously issued MIOSHA’s Emergency Rules (effective 10/14) specify, as it relates to onsite work, the “employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” The MIOSHA Rules specify that businesses conducting in-person work must, among other things, have a written COVID-19 preparedness and response plan and provide thorough training to their employees that covers, at a minimum, workplace infection-control practices, the proper use of personal protection equipment (PPE), steps workers must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19 and how to report unsafe working conditions.
The State’s FAQ says this on the topic: “Rule 5(8) says: The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely. What type of policy is required?” Answer: “MIOSHA recognizes that employers must determine who may work remotely, as well as those that must report to work. It is essential that businesses have a thoughtful, reasoned policy for why work that is completed in person cannot feasibly be completed remotely. This is what MIOSHA will check for. MIOSHA will not focus on evaluating the business’ judgment of feasibility, except for cases of obvious misapplication.”
MIOSHA launched a “State Emphasis Program” (SEP) last week focused on office settings. It stresses the need for “increased vigilance, education and enforcement on remote work policies” and will include inspections, citations and penalties. MIOSHA says, under the statute, they can cite employers, require abatement and fine them up to $7,000 for failing to produce a remote work policy or if the employer’s preparedness and response plan is non-compliant.
As with other orders, the MDHHS Emergency Order (effective Wed.) requires face masks. The order says “Except as provided elsewhere in this order, a person responsible for a business, store, office, government office, school, organized event, or other operation, or an agent of such person, must prohibit gatherings of any kind unless the person 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.”
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