26 May 2020

What Health Care Clients Need to Know about Executive Orders 2020-96 and 2020-97

Shortly before the holiday weekend, Governor Whitmer issued two executive orders, EO 2020-96 and EO 2020-97. Both orders impact health care providers and businesses. Most importantly, beginning on May 29, 2020, health care facilities may resume elective surgeries and other procedures provided they comply with the workplace safety rules established by EO 2020-97.

Resumption of Elective Procedures

Way back on March 20, 2020, Governor Whitmer signed EO 2020-17. The order prohibited medical and dental procedures that were not necessary to address a medical emergency or to preserve the health and safety of a patient. Under EO 2020-96, health care facilities may resume non-essential procedures beginning May 29, 2020. Practically speaking, this means hospitals can resume elective surgeries such as knee and hip replacements, ambulatory surgery centers can resume cataract procedures, colonoscopies and other outpatient procedures and dentist can resume teeth cleanings and other non-emergency procedures.

Workplace Safety Rules and other Considerations

While health care facilities may resume non-essential and non-emergency procedures, they are required to develop a COVID-19 preparedness and response plan consistent with Occupational Health and Safety Administration guidelines. The plans must be made readily available to employees, labor unions and customers by the later of June 1, 2020 or two weeks after resuming in-person activities. The specific requirements of the plan are beyond the scope of this alert, however, among other things, employers must provide employees with PPE, train employees on infection-control practices, designate worksite supervisors, conduct entry self-screening and keep everyone at least six feet from one another to the maximum extent possible. Clients are encouraged to subscribe to Miller Johnson’s Back to Work Resource Center for resources on developing a legally compliant COVID-19 preparedness and response plan.

Health care facilities should consider creating updated informed consent and other forms. The forms should inform patients of the risks posed by COVID-19 and require the patient to acknowledge and accept those risks. The forms do not need to identify every possible risk or outcome, but they should provide sufficient information such that patients are made aware of the new risks. Medical records should also document that the risks were discussed with the patient.

Reopening Hospital Gift Shops and In-office Retail

EO 2020-96 also permits retail activities by appointment provided a retail store only permits ten customers to enter at a time. Retail does not include places of “public accommodations” as defined by EO 2020-69 which includes restaurants, food courts, cafes, cigar bars, theaters and libraries. However, hospital gift shops and in-office retail activities such as selling medical supplies, nutritional supplements are durable medical equipment are permitted to re-open. Like all re-opening businesses, gift shops and health care related retail must develop a COVDID-19 preparedness and response plan and should take other steps to protect employees and customers.

Questions about re-opening and resuming elective procedures should be directed to the author or your Miller Johnson attorney.