On March 23, 2020 in an escalated response to the spread of the novel coronavirus COVID-19, Michigan joined other states issuing stay at home orders through Executive Order 2020-21. The executive order took effect beginning on March 24, 2020 at 12:01 a.m. and ends April 13, 2020 at 11:59 p.m. As a general matter, among other things, the executive order requires that all individuals living in Michigan stay at home and prohibits the operation of a business or operation that requires workers to leave their homes. However, the executive order provides important exceptions to these requirements that are relevant to health care businesses and operations.

Generally

Of significance, the executive order is only designed to prohibit in-person work that is not necessary to sustain or protect life. Health care businesses and operations, like other employers, may continue to provide services that rely on remote work accomplished from a worker's home. Health care businesses and operations may be operated even though it requires workers to leave their homes, and individuals may leave their homes and travel as necessary, to the extent limited to:

1. critical infrastructure workers (i.e., those workers necessary to sustain or protect life) performing their jobs; or

2. to workers necessary to conduct minimum basic operations performing their jobs;

3. to perform tasks that are necessary to their [or their family's or household members'] health and safety; or

4. to obtain necessary services or supplies for themselves, their family or household members.

Critical Infrastructure Workers

Critical infrastructure workers means those critical infrastructure workers described by the U.S. Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency in its March 19, 2020 guidance on the COVID-19 response. The DHS guidance list of essential critical infrastructure workers is advisory in nature and not binding in and of itself. The executive order, however, is binding and incorporates this list into its operation. In addition, the executive order further includes certain additional categories of critical infrastructure workers above and beyond those identified in the DHS guidance.

Of relevance to health care businesses and operations, the DHS guidance identifies workers in the health care/public health sector as being critical infrastructure workers and further lists all manner of sector workers considered critical. This list provides a host of job descriptions, including caregivers (such as physicians, mid-level practitioners, nurses and assistants, physical and occupational therapists and assistants, etc.), hospital and laboratory personnel (such as accounting, administrative, housekeeping, etc.), and workers in other medical facilities (such as ambulatory centers, clinics, comprehensive outpatient rehabilitation, hospitals, long term care, etc.). 

The executive order further provides a downstream process for a cascading series of designations that a business or operation that employs critical infrastructure employees may itself make for suppliers, distribution centers or service providers whose continued operation is necessary to enable, support or facilitate the work of its critical infrastructure workers (and from those suppliers, distribution centers, or service providers to their suppliers, distributions centers, or service providers). Health care businesses and operations generally fit into the categories of critical infrastructure workers identified in the DHS guidance and may further be designated as critical to the supply chains of other critical infrastructure operations.

There remain conditions on the use of critical infrastructure workers under the executive order. In-person activities that are not necessary to sustain or protect life must still be suspended until normal operations resume, and social distancing practices and other mitigation measures to protect workers and patrons remain. The implication for health care businesses and operations is that even if they are permitted to continue providing in-person services because of a critical infrastructure analysis, it should not lead to business as usual. Activity should be limited to that which is in fact critical, and standards should continue to be implemented in recognition of the continued threat of COVID-19.

Workers Necessary to Conduct Minimum Basic Operations

Workers who are necessary to conduct minimum basic operations means those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits) or facilitate the ability of other workers to work remotely. The executive order is not as express about the remaining conditions on the use of workers necessary to conduct minimum basic operations, but it seems likely (and prudent) that the same expectations regarding limiting activity as appropriate and implementing social distancing practices and other mitigation measures be recognized with these workers as with critical infrastructure workers. For health care businesses and operations, workers in these critical positions may already be critical infrastructure workers because of the critical nature of health care sector jobs in Michigan's infrastructure.

Designations

Health care businesses and operations are required to determine which of their workers are critical infrastructure workers and which are necessary to conduct minimum basic operations and then inform such workers of that designation. The designation must be in writing but may be made orally until March 31, 2020 at 11:59 p.m. However, critical infrastructure workers in health care and public health do not need to be so designated. On that basis, health care businesses and operations are likely to have less, if any, need to make formal designations.

Patients

Application of the executive order to the ability of a health care business or operation to remain open to provide in-person services is only half the story. The requirement that all individuals living in Michigan stay at home restricts the basis on which patients may leave their homes to visit a health care business or operation and secure in-person services.

The executive order provides exceptions to this requirement, but they are limited. For example, the exception for performing tasks that are necessary to health and safety includes: leaving home to secure medication; to seek medical or dental care that is necessary to address a medical emergency; or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed). The practical impact is that, even if a health care business or operation remains open after analysis of and compliance with Executive Orders 2020-17 (discussed below) and 2020-21, patients may elect to cancel or postpone procedures or appointments to comply with the travel directives.

As a further example, the exception to obtain necessary services or supplies includes leaving home to purchase needed medical supplies. The exception is qualified such that individuals must secure such services or supplies via delivery to the maximum extent possible. 

Executive Order 2020-17

As mentioned above, Executive Order 2020-21 should be read in conjunction with Executive Order 2020-17, which Gov. Whitmer issued on March 20, 2020. Executive Order 2020-17 imposed temporary restrictions on certain health care businesses' or operations' ability to perform non-essential medical and dental procedures for the duration of the declared COVID-19 state of emergency. The effect of Executive Order 2020-17 is in some ways subsumed by the breadth of Executive Order 2020-21. However, Executive Order 2020-17 still remains in effect and continues to impact the scope of procedures that health care businesses and operations may be required to postpone. Of note, the same standards for determining whether a procedure is essential or not in Executive Order 2020-17 are used in Executive Order 2020-21 to describe on what basis patients may leave their homes to seek medical or dental care (i.e., only when that care is necessary to address a medical emergency or necessary to preserve health and safety). See what Varnum's Health Care Practice Team has to say about Executive Order 2020-17 in our advisory Michigan Health Care Facilities Required to Postpone Non-Essential Procedures.

Takeaways

Health care businesses and operations generally may be considered critical to Michigan's infrastructure and may continue to provide certain services even though they require workers to leave their homes. Individuals may leave their homes and travel as necessary, to the extent limited to critical infrastructure workers and those workers necessary to conduct minimum basic operations. Formal designation of these workers as such is likely not necessary but recommended. However, these exceptions should not be used to engage in business as usual but require careful analysis and consideration of the scope of practice, including both procedures/services and necessary personnel. Additionally, the general climate of fear may depress patient turnout for procedures, even if those procedures might strictly be deemed essential as addressing a medical emergency or being necessary to preserve health and safety. It is accordingly paramount that health care businesses and operations make a comprehensive evaluation of the need to use in-person services to deliver health care to patients, along with the costs and benefits of doing so.