Michigan’s response to COVID-19 has been a moving target since the Michigan Supreme Court ruled Governor Whitmer did not have the authority to issue executive orders under the Emergency Powers of the Governor Act of 1945. This ruling, issued on October 2, 2020, was confirmed as effective on that date by the Court.
Even though the previous Executive Orders are no longer in effect, new regulations issued by DHHS on October 9th and October 29th replaced the prior Executive Orders with similar restrictions. For instance, masks must still be worn over the nose and mouth during nonresidential gatherings of two or more people, and businesses cannot admit people into their locations without masks. Participants in organized sports are still required to wear masks and observe gathering limits.
Additionally, in light of the resurgence of COVID-19 in October, Governor Whitmer issued another Executive Order, effective November 15, for a three-week period. This Executive Order is still in effect at the time this newsletter is going to print but will have expired by the time this newsletter is sent out. Therefore, this article will only address the DHHS regulations.
“Social distancing” remains in effect, which continues to mean 6 feet of space between individuals.
Under DHHS regulations, gatherings continue to be restricted to 10 people indoors or 100 people outdoors for residential gatherings. For nonresidential gatherings, the number of people allowed can exceed 10 people, up to 500, so long as attendance is limited to 20% of seating capacity of the venue, or limits attendance to 20 people per 1,000 square feet of a space for non-seated venues. Retail stores, libraries and museums may not exceed 50% of their total occupancy limits.
One big change between the former Executive Orders and the regulations issued by DHHS is that bars were allowed to open but could only serve alcohol to groups seated at tables or no more than six people. Restaurants and salons must maintain accurate records of the names, phone numbers, and time of entry for all patrons dining or receiving services to allow for contact tracing in the event of COVID-19 exposure.
DHHS also has set stringent testing regulations for nursing homes, requiring testing of any resident or staff with symptoms or suspected exposure, weekly testing of all residents and staff in a facility with any positive cases until 2 weeks after the last new positive test, testing of new and returning residents within 72 hours prior to intake, and weekly testing of all staff in certain counties.
Visitation remains limited for residential care facilities. A facility can only allow visitation when it has had no new COVID-19 cases originate within the facility in the prior two weeks and have a low county-wide risk level. Visits are limited to appointment only; visitors must test negative for COVID-19 within 72 hours prior to the visit and require appropriate masking/sanitation requirements. No physical contact is allowed.
There are exceptions to the stringent rules for visitation and testing. For instance, visitor testing is not recurred for assisted living facilities, hospice, or substance abuse facilities. In addition, facilities may allow for compassionate care visits where the individual in a facility is in serious or critical condition, or other limited circumstances. Physical contact with the individual is allowed for up to 15 minutes if the individual is at the end of their lives.
A violation of DHHS’s order carry a civil fine of up to $1,000.
Michigan Legislative Changes
Four Public Acts were signed into law by the governor on November 5, 2020. This new legislation allows for temporary remote witnessing, notarization, and visitation which was previously allowed under the prior Executive Orders. This legislation, which is set to expire at the end of 2020, is temporary but provides much needed leeway to provide access to estate planning for all Michigan residents during the pandemic.
First, the legislation offers a “savings clause” which ratifies that all documents remotely notarized or witnessed between April 30, 2020 and the end of the year are not impaired on that basis alone.
Second, until the end of the year individuals may notarize and witness documents using two-way real-time audiovisual technology such as Zoom, Google Hangouts, or Skype. This will allow access to estate planning to those confined to isolation at home, in nursing homes, and in the hospital.
Third, use of electronic signatures are now sometimes allowed on documents until the end of the year. This does not apply to estate planning documents, which still require a physical signature.
Finally, guardians and guardians ad litem will be able to meet their visitation requirements for protected individuals via two-way real-time audiovisual technology.
All of these legislative changes provide a great service to Michigan residents to allow more meaningful access to legal services and documents during the pandemic. However, all of these changes are only temporary. Several sections and member of the Michigan State Bar are working with state elected officials on additional legislation to make some of these changes permanent.
If you have additional questions about how these new regulations and laws will affect your business or estate planning, please feel free to contact our office for more information. We are pleased to again offer remote signings to our clients.