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MI Executive Order: Resuming Non-Essential Procedures in Outpatient Healthcare

May 21, 2020

On Thursday, May 21, Gov. Whitmer rescinded Executive Order 2020-91, issued only three days prior, and released an amended order that now includes new provisions governing outpatient health care facilities. This latest order, Executive Order 2020-97 (Order), also makes some minor adjustments to the workplace safety rules announced earlier in the week.

The governor’s latest announcement allows outpatient health care facilities, including doctor’s offices, dental offices and veterinary clinics to resume non-essential procedures starting May 29, 2020. These offices must abide by a number of workplace safety protocols, and the Order does not provide an expiration date for the new safety measures.

The Order provides 15 workplace safety rules specific to health care facilities, including limiting waiting room occupancy, conducting a common screening protocol for all patients and adding special hours for patients highly vulnerable to severe illness from COVID-19. Facilities are also instructed to enable contactless sign-in as soon as practicable. Such facilities must also abide by the general business workplace safety rules set out in section one of the Order.

The new Order maintains the enhanced enforcement powers first revealed in Executive Order 2020-91. The State of Michigan now has two routes of enforcement it may pursue against employers who fail to follow the workplace safety rules enumerated in the Order. First, the workplace safety rules are given the force and effect of regulations adopted by the state agencies that oversee workplace health and safety. Such agencies are given full authority to enforce the rules, and any challenges to penalties must move through the agencies’ administrative appeals process. Second, the Order states that violations of the workplace safety rules are also violations of the Michigan Occupational Health and Safety Act (MIOSHA). As a result, Michigan’s Occupational Safety and Health Administration will have the authority to conduct investigations into violations, issue penalties and distribute cease operation orders.

Varnum attorneys remain ready to assist employers with compliance matters and responses to complaints concerning unsafe workplaces, including MIOSHA investigations. Please contact any member of Varnum’s labor and employment team for assistance.

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