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As states across the country continue to grapple with the ongoing COVID-19 pandemic, Michigan Gov. Gretchen Whitmer issued Executive Order 2020-70 (Order), which took effect on May 1 and continues the mandatory stay-at-home restrictions for all Michigan residents through May 15, 2020. The Order reaffirms and loosens some of the restrictions imposed under Executive Order 2020-21, Executive Order 2020-42, and Executive Order 2020-59 (EO-59 and, collectively, the Rescinded Orders), two of which we discussed in previous articles here and here. While the Order continues to ease some of the restrictions imposed by the Rescinded Orders, it also imposes additional restrictions and obligations on the real estate and construction industries as each returns to work.
The Order contains several key updates affecting businesses. While it does not modify the definition of “critical infrastructure workers,”1 Paragraph 10 of the Order does expand the categories of workers initially defined under EO-59 that are allowed to resume certain in-person activities (known as “resumed activity workers”).2 Of note, the workers listed in subparagraphs (f) through (i) of the Order, which are described in detail below, are not allowed to resume in-person work until May 7 at 12:01 a.m.
The workers named in Paragraph 10 of the Order must receive employer designation to conduct such activity “in writing, whether by electronic message, public website, or other appropriate means” before commencing any in-person work. “Resumed activity workers” are defined as follows:
Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
Workers who perform bicycle maintenance or repair.
Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of [the Order].
Maintenance workers and groundskeepers who are necessary to maintain the safety and sanitation of places of outdoor recreation not otherwise closed under Executive Order 2020-69 or any order that may follow from it, provided that the places and their workers do not provide goods, equipment, supplies, or services to individuals, and subject to the enhanced social-distancing rules described in section 11(h) of [the Order].
Workers for moving or storage operations, subject to the enhanced social-distancing rules described in section 11(h) of [the Order].
Workers who perform work that is traditionally and primarily performed outdoors, including but not limited to forestry workers, outdoor power equipment technicians, parking enforcement workers, and similar workers.
Workers in the construction industry, including workers in the building trades (plumbers, electricians, HVAC technicians, and similar workers), subject to the enhanced social-distancing rules described in section 11(i) of the Order.
Workers in the real-estate industry, including agents, appraisers, brokers, inspectors, surveyors, and registers of deeds, provided that:
Any showings, inspections, appraisals, photography or videography, or final walk-throughs must be performed by appointment and must be limited to no more than four people on the premises at any one time. No in-person open houses are permitted.
Private showings may only be arranged for owner-occupied homes, vacant homes, vacant land, commercial property, and industrial property.
Workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections.
Importantly, the Order also exempts from suspension those government activities that are “necessary to support the activities of [critical infrastructure and resumed activity] workers . . . or to enable transactions that support businesses or operations that employ such workers.” Moreover, in addition to the previously existing social-distancing requirements for businesses conducting in-person work — requirements that remain unchanged from EO-59 — any businesses conducting in-person work under items (c) through (g) above must also adhere to “enhanced social-distancing rules” under the Order. These businesses must:
prohibit gatherings of any size in which people cannot maintain six feet of distance from one another
limit in-person interaction with clients and patrons to the maximum extent possible, and bar any such interaction in which people cannot maintain six feet of distance from one another
provide personal protective equipment (PPE), such as gloves, goggles, face shields and face masks, as appropriate for the activity being performed
adopt protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment and frequently touched surfaces.
Additional Requirements for the Construction Industry
While the reopening of construction activities is welcome news to the industry, the Order, as noted above, imposes “enhanced social-distancing rules” on workers in the construction industry. Businesses engaged in the activities described in item (g) should immediately prepare to comply with the requirements directly above as well as the additional requirements below ahead of May 7 (from Paragraph 11(i) of the Order):
Adhere to [the enhanced social-distancing guidelines noted above].
Designate a site-specific supervisor to monitor and oversee the implementation of COVID-19 control strategies . . . . The supervisor must remain on-site at all times during activities. An on-site worker may be designated to perform the supervisory role.
Conduct a daily entry screening protocol for workers and visitors entering the worksite, including a questionnaire covering symptoms and exposure to people with possible COVID-19, together with, if possible, a temperature screening.
Create dedicated entry point(s) at every worksite, if possible, for daily screening . . . or in the alternative issue stickers or other indicators to workers to show that they received a screening before entering the worksite that day.
Require face shields or masks to be worn when workers cannot consistently maintain six feet of separation from other workers.
Provide instructions for the distribution of personal protective equipment and designate on-site locations for soiled masks.
Encourage or require the use of work gloves, as appropriate, to prevent skin contact with contaminated surfaces.
Identify choke points and high-risk areas where workers must stand near one another (such as hallways, hoists and elevators, break areas, water stations, and buses) and control their access and use (including through physical barriers) so that social distancing is maintained.
Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers.
Notify contractors (if a subcontractor) or owners (if a contractor) of any confirmed COVID-19 cases among workers at the worksite.
Restrict unnecessary movement between project sites.
Create protocols for minimizing personal contact upon delivery of materials to the worksite.
Other Significant Updates
For stores that remain open for in-store sales, the Order continues to permit those businesses to “sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.” As such, the restrictions on in-store sales of carpet and flooring, furniture, paint and garden center/plant nursery supplies remain lifted. Additionally, the restrictions on advertising imposed by the Rescinded Orders have been eliminated. Golfing and boating remain specifically allowed under the Order as recreational activities for individuals, but the restrictions on rentals of short-term vacation property also remain.3
The Order also continues to require that “[a]ll businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.” As most of us know, PPE is in short supply across the globe. Michigan Attorney General Dana Nessel recognized the difficulty this may present for employers by issuing a press release asking law enforcement to consider good faith efforts of employers to acquire the required face coverings when enforcing the Order.
Finally, as stated above, Paragraph 10(h) of the Order also allows an exception from the stay-at-home requirements for those who wish to view a real-estate listing by appointment.
As discussed in our previous articles linked above, a willful violation of the Order is a misdemeanor. Given that the Order is already in effect, businesses must promptly revise their policies and procedures to comply with the Order if they have not already done so. To that end, we recommend that businesses:
to the greatest extent possible, acquire non-medical grade face coverings for distribution to their employees
document each attempt to acquire face coverings to meet the good faith standard articulated by the attorney general
continue to review and revise your COVID-19 preparedness and response plan as appropriate
for stores open to in-person sales, continue to develop and implement social-distancing procedures and infrastructure to manage lines of patrons, which allow them to remain at least six feet apart
adjust your social-distancing procedures to comply with the Order’s enhanced social-distancing rules if your business conducts in-person work subject to those enhanced rules
consider developing a procedure for curbside ordering and pick-up to minimize congestion to the maximum extent possible
continuously monitor the state’s coronavirus website for additional guidance
businesses described in Paragraph 10(g) of the Order (construction industry) must be sure to comply with the requirements of Paragraph 11(i) listed above.
Although your business may not yet be permitted to reopen under the Order, the further easing of restrictions announced here implies a trajectory toward more easing of restrictions in the future. Businesses should consider planning now for the time when they will be allowed to reopen to minimize start-up delays.
The attorneys at Pepper Hamilton are actively working to assist companies in evaluating the complex issues presented by the Order. For more information on the Order’s applicability to your business, please contact the authors.
1 EO-59 slightly altered the definition of “child care workers” to include those child care workers “necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities.” Additionally, “[w]orkers at retail stores who sell . . . products necessary to maintain the safety, sanitation, and basic operation of . . . motor vehicles” were specifically included as critical infrastructure workers in EO-59. Both of these changes survive in the current Order.
2 Workers defined in sections (a) through (e) were first included in EO-59, while sections (f) through (i) were added in the Order.
3 Section 13 of the Order states: “No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.”
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.