This afternoon the Michigan Department of Health and Human Services (MDHHS) put out an Emergency Order under MCL 333.2253 that puts Michigan rules for COVID testing beyond what any other state requires.
We had a call on this last week and I sent out a draft of their ideas for the industry. The only changes I can find are you don’t have to test anyone under 18 years of age. They really didn’t listen to any of the groups that were on the call. I am disappointed in the order putting us as an outlier in the agriculture industry with the rest of the nation. They have also singled out agriculture industries to put a burden of higher testing requirement on while ignoring any other industry. This order not only says your employees have to be tested, but also the owners and operators of greenhouses have to be tested if you have 20 or more people on any shift. You must have a plan for conducting testing consistent with the order no later than August 10, 2020. All employers and housing operators with migrant housing and places who have over 20 employees on a shift must implement the testing requirements no later than August 24, 2020.
Here is the actual wording in the Emergency order:
3.Employers and housing providers in certain agricultural settings, as defined below, must provide diagnostic testing for COVID-19 to workers or residents and adopt infection prevention measures as follows:
a. All owners and operators of migrant housing camps licensed by the Michigan Department of Agriculture and Rural Development (MDARD) under Part 124 of the Public Health Code (hereafter “housing operators”) must:
i. Provide testing for any resident with symptoms or suspected exposure to COVID19;
ii. Provide testing for all newly arriving residents within 48 hours after arrival, unless the resident has already been tested in the 72 hours before arrival;
iii. To the greatest extent possible, house newly arriving residents in a separate living unit from current residents for 14 days after arrival;
iv. If housing in a separate living unit cannot be accomplished, require that newly arriving residents wear a cloth face covering at all times during the first 14 days after arrival, including in dwelling units and after work hours, except when eating, drinking, or performing personal hygiene activities or if the resident cannot medically tolerate a face covering;
v. Provide a second test to newly arriving residents 10 – 14 days after arrival;
vi. Conduct temperature checks of residents at least once per day;
vii. Provide testing for any resident registering a fever of 100.4 degrees Fahrenheit or higher.
b. All agricultural employers, as defined below, with over 20 workers on site at a time (not including the employer’s family members) must:
i. Provide testing for any worker with symptoms or suspected exposure to COVID19, and
ii. Provide testing for all new workers prior to beginning in-person work.
iii. For the purposes of this order, “agricultural employer” (hereafter “employer”) includes:
1. All employers of migrant agriculture workers who do not live on site, including H-2A workers;
2. All employers of seasonal agriculture workers who do not live on site;
3. All owners and operators of meat, poultry, and egg processing plants;
4. All owners and operators of greenhouses.
c. All employers and housing operators in sections 3(a) and 3(b) must also complete onetime baseline testing of all current workers or residents.
d. All employers and housing operators in sections 3(a) and 3(b) must implement these testing requirements as soon as practicable and no later than by August 24, 2020.
e. Housing operators and employers may agree by mutual consent for an employer or housing operator to enforce some or all of the requirements in section 3(a)(i. – viii.), where more practicable in the environment. Such agreements must be in writing.
f. If an individual is subject to multiple testing requirements under sections 3(a) and 3(b), an employer and housing operator may utilize one test and a documented testing result to fulfill multiple testing requirements for the same period of time. Employers must take primary responsibility for testing in this instance, unless the housing operator agrees to conduct testing by mutual consent.
g. Employers and housing operators only need to provide testing to individuals ages eighteen and over. Youth under the age of eighteen are exempt from the testing requirements in this section.
h. Employers and housing operators are responsible for arranging testing for workers and residents as described in this order, including specimen collection from workers, laboratory processing of the specimens, and ensuring that results are reported to state and local public health authorities. Employers and housing operators may contract with occupational health firms, medical providers, laboratories, or other vendors to complete testing as needed. Any of the responsibilities of employers or housing operators under this order may also be completed by their designees, if they have contracted with a capable entity to provide that service. These contracts must be in writing.
i. Employers, housing operators, or medical providers conducting testing must provide information about the test and the consequence of not testing in the individual’s preferred language. Consent or assent must be obtained from each individual to conduct the test. Employers or housing operators may not pressure, intimidate, or otherwise coerce individuals to decline testing.
j. Workers who decline testing may not conduct in-person work and, if living in a licensed migrant housing camp, must be housed in isolation housing consistent with social distancing and infection prevention measures. The worker must be informed of these requirements in the worker’s preferred language. These measures must continue until the individual is tested and receives a documented negative result.
k. Employers and housing operators are responsible in the first instance for financial costs resulting from testing, though they or their designee may seek reimbursement from health insurance where applicable and may seek state assistance to conduct testing as described in section 3(l). Employers and housing operators may not pass costs along to
workers, including costs uncovered by health insurance, whether in the form of direct charges or indirect charges, fees, compensation changes, or other financial means.
l. Employers and housing operators facing challenges arranging testing may seek assistance to conduct testing as follows:
i. Employers and housing operators seeking assistance may submit a request for testing assistance to MDHHS at MDHHS-Migrant-Affairs@michigan.gov, using the attached template;
ii. MDHHS may direct requestors to testing resources available through medical providers and in the community;
iii. MDHHS may alternatively provide direct assistance with supplies, specimen collection, and laboratory processing;
iv. The State of Michigan will provide testing support as capacity allows. The State retains sole discretion to determine whether to fulfill requests for assistance.
m. As soon as practicable and no later than August 10, 2020, employers and housing operators must complete a plan for conducting testing consistent with this order, using the attached template. Such plans must, at a minimum, identify a schedule for actions; laboratories or hospitals with which the facilities will partner; and a procedure for addressing individuals who decline testing. Those plans must be made available to MDHHS, MDARD, or the Michigan Occupational Safety and Health Administration upon request.
n. When conducting testing, employers, housing operators, or their designees must ensure that laboratory requisition forms and any other documentation includes, at a minimum, the information below. These data elements ensure that state and local public health can appropriately follow up on any positive cases identified. Laboratories must comply with existing reporting requirements, namely reporting all tests completed, both positive and negative, to the Michigan Disease Surveillance System.
i. Full Name
ii. Date of Birth
vi. Facility/Employer Address
vii. Patient Telephone Number
viii. Date of Sampling Event (Specimen Collection)
ix. Name of Specific Laboratory Test
x. Date of Laboratory Test Completed
xi. Laboratory Test Results
xii. Laboratory Name
xiii. Laboratory License Number
xiv. Name, Address, Telephone, and Fax Number of the Ordering Clinician
o. Employers, housing operators, or their designees must report test results to the patient.
p. An employer or housing operator that requests MDHHS assistance to comply with this order by August 11, 2020, does not receive such assistance, and cannot comply for reasons beyond its control (e.g. inadequate testing supplies) may seek a determination from MDHHS that it has not violated this order. Employers or housing operators must report to MDHHS at MDHHS-Migrant-Affairs@michigan.gov within 24 hours of their known inability to comply with their testing plan. MDHHS may, in its discretion, determine that the entity cannot comply with this order for a reason beyond its control. An entity that receives such a determination from MDHHS will not be in violation of this order.
q. Employers and housing operators must maintain records of testing conducted for one year and comply with any applicable confidentiality laws. MDARD may review such records and compliance with this order during any inspection, licensing renewal, or at its discretion. MDHHS may review such records at its discretion.
This is not the entire order but is the meat of the order. It also states that failure to comply with the order may result in the issuance of a civil monetary penalty under the authority of MCL. 333.2262. The order is effective immediately and remains in effect until lifted. Please follow the link to view the JIC News Release 310 – MDHHS Issues Order Requiring Testing of Agricultural and Food Processing Employees to Protect Health and Safety; the entire order can be found at 2020.08.03_-_MDHHS_Public_Health_Order_-_Agriculture_Testing_vF_698096_7.
You can contact MDARD at 1-800-292-3939 main line, email MDA-Info@michigan.gov or Lynn Sutfin (contact on the latest order) at 517-241-2112. The state COVID-19 email is email@example.com and the Director of MDHHS Robert Gordon email is BowdenA1@michigan.gov. You may want to let them how this will affect your business.
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