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April 2020

Governor Whitmer Mandates Employers Develop COVID-19 Preparedness Plans To Perform “In-Person” Work

On April 24, 2020, Governor Gretchen Whitmer issued Executive Order 2020-59 (the “Order”), which extends the Stay-at-Home timeframe to May 15, 2020, and expands the universe of workers allowed to return to work outside the home. Key to the Order is the requirement that businesses with any employees working in-person (i.e., not remotely) must have in place a COVID-19 Preparedness and Response Plan (“Plan”), consistent with guidance previously issued by the Occupational Health and Safety Administration (OSHA).  

Executive Order 2020-59 can be accessed here. We previously reported on key aspects that employers should consider in developing their COVID-19 Plan, which can be accessed here

While the newspaper headlines will focus on the return of lawn and gardening supplies at local stores, and Michiganders hitting the links now that the restrictions on golf have been relaxed, the key takeaway for business owners making preparations for re-opening their stores and offices is: What belongs in my COVID-19 Preparedness Plan? 

Considerations for preparing a COVID-19 Plan include: (1) assessing COVID-19 risks to employee health, including those relating to specific job functions and individual risk factors; and (2) identifying, documenting and implementing the appropriate controls. These will vary with the type of work performed and the location of the work. The Plan should be developed to assess and control COVID-19 related health risks for both “in-person” and “in-office” work. The COVID-19 specific employee training requirements must be tailored as appropriate for the services being provided by the business.

A Plan should outline the proper recording of workplace exposure events involving COVID-19. Per OSHA, employers are only responsible for recording cases of COVID-19 if all of the following are true:

1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19); 
2. The case is work-related (as defined by 29 CFR 1904.5); and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).

Before issuing Personal Protective Equipment (PPE), the following questions must be considered:

1. Is the appropriate PPE identified to be used by your employees for the task?
Is employee training conducted and documented on the proper procedures and techniques for the use of that equipment? 
3. Is respiratory fit testing required?  

This is especially timely given that Executive Order 2020-59 requires that employers provide employees who perform in-person work with a non-medical grade face covering (at a minimum). Workplace safety also involves consideration of the proper disinfectants to minimize the risk of exposure to COVID-19 and the proper use and storage of such chemical agents. 

Within three weeks of the first presumptive positive COVID-19 case in Michigan, the attorneys at Foley, Baron, Metzger & Juip, PLLC have been developing company specific COVID-19 Preparedness and Response Plans for their clients. The FBMJ approach takes into account the unique sectors, workforce and work environments individual to their respective clients and tailors a Plan to meet that company’s specific needs. To help your company maintain compliance with the Governor’s Executive Order 2020-59, you may contact one of the attorneys listed below: 

Rich Baron 
Ben Fruchey
Nick Tatro