Reopening Your Business: Implementing required COVID-19 mitigation measures
The northern Michigan regions are the first regions in Michigan to be granted broader permission to reopen businesses due to their low numbers of COVID-19 cases and deaths, as compared with other Michigan regions.
This welcome news for business owners and employees comes amidst several grim statistics: The U.S. recently surpassed 100,000 deaths; Michigan has 54,881 confirmed cases; and 5,240 Michiganders have lost their lives to COVID-19. Against this backdrop, employees returning to work may feel anxious and concerned about exposure to the virus in the workplace. By implementing required mitigation measures and establishing good channels of communication with their employees on issues of safety, employers will better position their business for a successful reopening.
Required Mitigation Measures
On May 7, 2020, Governor Whitmer released “MI Safe Start: A Plan to Re-Engage Michigan’s Economy.” The governor’s plan establishes a six-phase continuum of restrictions and mitigation measures that relax incrementally over time as COVID-19 infections decrease and treatments develop.
The final post-pandemic phase permits all businesses to open only after there is a “high uptake of an effective therapy or vaccine” while continuing to require certain safety guidance and procedures and social distancing rules. As a vaccine to COVID-19 may not be available until mid-2021 or later, employers cannot simply wait it out. Thus, businesses should move quickly and proactively with all mitigation measures as soon as they are permitted to reopen.
The Grand Traverse region and Upper Peninsula have entered phase 4 of the plan due to their declining COVID-19 numbers while the rest of Michigan remains in phase 3. Executive Order 2020-96 (EO-96) extended the general shelter-in-place order through May 28, 2020, but increased limited exceptions for certain critical infrastructure workers, workers performing minimum basic operations, and workers performing a subset of resumed activities.
Under Executive Order 2020-97 (EO-97), all businesses utilizing permitted in-person work under EO-96 are required to take specific measures to protect their employees and mitigate the spread of COVID-19. It is expected that any similar executive orders in the near future will require at least these same mitigation measures, which include but are not limited to:
- Developing and maintaining an OSHA-compliant COVID-19 preparedness and response plan by June 1, 2020, or within two weeks of resuming in-person activities, whichever is later.
- Designating supervisor(s) to implement, monitor, and report COVID-19 control strategies.
- Providing COVID-19 training to employees.
- Conducting a daily self-screening protocol for all employees entering the workplace, including at a minimum a questionnaire covering symptoms and suspected exposure.
- Enforcing visible six-foot social distancing and requiring masks (provided by the employer) when such distance cannot be consistently maintained.
- Increasing facility cleaning and disinfecting standards.
- Making cleaning supplies available to employees upon entry and providing time to frequently wash hands or use hand sanitizer.
- Implementing a plan for notification and action subsequent to identification of a confirmed case of COVID-19 in the workplace.
- Promoting remote work to the fullest extent possible.
Under EO-97, an employer’s failure to comply with these mitigation measures constitutes a violation of Michigan’s OSHA under MCL 408.1011, subjecting the business to possible penalties. If found to be willful, the violation could constitute a misdemeanor under EO-96, potentially affecting a business’s continued operations. Failing to comply with mitigation measures could also result in workers’ compensation claims if employees become sick while at work and a decrease in employee productivity and morale.
Creative Mitigation Strategies
As each business is unique, mitigation strategies that work in one work environment will not necessarily work in another work environment. In deciding what additional mitigation measures may be necessary to achieve your primary goals of maintaining six-foot social distancing, ensuring effective cleaning and disinfecting, and conducting daily employee health screenings – all of which are designed to limit virus transmission – employers should consider:
- Adopting a gradual plan for returning employees to work.
- Implementing staggered employee work schedules for days and/or times worked.
- Reorganizing cubicles and other work areas to accommodate six-foot social distancing.
- Developing clear, visible six-foot markings on the floor and signage for social distancing.
- For businesses with patrons, posting an entering office sign regarding required social distancing and/or wearing of masks.
- Closing common areas to employee use, such as break rooms.
- Implementing staggering of employee break times.
- Replacing community-use glasses, coffee mugs, plates and silverware with disposable paper/plastic products.
- Turning off water fountains.
- Identifying high-touch surfaces with color-coded stickers.
- Replacing door knobs with hook openers or removing doors.
- Replacing trash receptacles requiring hand touch with no-touch foot pedals.
- Planning for anticipated supply shortages of high demand items: no-touch thermometers, soap, disinfectant, paper towels, hand sanitizer, face masks, gloves, and other PPE.
- Using stickers, hand-stamping or other visible markings to confirm employees’ completion of daily health screenings and hand-washing/sanitizing upon entry into work environment.
An employer’s social distancing, cleaning and disinfecting, and daily health screening policies will only be effective if they are uniformly applied to everyone in the work environment, including the owners and management, and are transparent to all employees. By taking a “we are all in this together” approach to safety in the workplace, employers can help alleviate their employees’ trepidation about possible exposure in the workplace. Through this shared confidence in the measures taken to ensure the safety of all during these difficult times, employers can better position their business for success upon reopening. We owe that to those no longer with us today.
*NOTE: We will have a second article appearing in the July edition of TCBN focusing on the issues faced by businesses during their first month of reopening.
Janis L. Adams and Lindsay J. Raymond of Danbrook Adams Raymond, PLC are experienced employment law attorneys and business owners. You can reach them at firstname.lastname@example.org and email@example.com.