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Unfortunately, all indications suggest that COVID-19 will continue to play a major role in your township’s operations in 2022, from conducting meetings to setting employment policies.  Read on for more information about how you can best prepare to deal with these ongoing, ever-changing developments.

Open Meetings Act: Limitations on Meeting Electronically

The Open Meetings Act (“OMA”) was amended by Public Acts 228 and 254 of 2020 to allow increased use of electronic meetings during the pandemic. These amendments created three time periods and allowable circumstances for meeting electronically. As of January 1, 2022, electronic attendance at public meetings is only permitted for officials requiring accommodation for absence due to military duty.

The legislature has given no indication that it will pass further legislation to provide additional allowances for electronic meetings. This means that, starting on January 1, 2022, township boards lose their ability to use electronic meetings to 1) accommodate members with qualifying medical conditions, or 2) host a meeting electronically when their Township is subject to a statewide or local state of emergency (which includes any declared emergencies for COVID-19).

If facilitating electronic attendance due to military absence (or if the legislature provides additional allowance for electronic meetings), it is important to remember that the OMA has additional requirements: (1) Us[e] a method that allows “two-way communication” (i.e., the ability to hear and be heard); (2) Each member attending electronically must state that they are attending remotely and their physical location (city/township/village and state) for recording in the minutes, except that location need not be stated for military absence; (3) a township must adopt procedures for providing notice of the absent member(s) and information about how to contact them in advance of a meeting to provide input; and (4) a township must post the meeting notice on its website and, if it exists, the meeting agenda must be posted on the website at least two hours before the meeting. [1]

The public notice for a meeting with electronic attendance must contain the following additional information, where applicable[2]: (1) Why the public body is meeting electronically; (2) Which member(s) will be participating electronically; (3) How the public may participate in the meeting electronically, including a telephone number, internet address, or both; (4) How the public may contact members of the public body attending electronically to provide input or ask questions; and (5) How persons with disabilities may participate in the meeting.

Remember, members of the public are not entitled to participate in a meeting electronically, though a township may still choose to provide a video feed to allow the public to observe without participating. A public notice could include a statement that “members of the public may not participate electronically,” to be clear that full electronic participation is not provided.

What About Board Members Who Cannot Be Accommodated?

One of the consequences of the OMA amendments is a significant reduction of a board member’s ability to participate in a meeting electronically if not qualifying for accommodation. The OMA does not expressly define what it means to “accommodate” an absence. If a court were reviewing the issue, it might consult a dictionary to determine the meaning. One dictionary defines “accommodate,” in-part, as “to do something helpful for (someone).”[3] Using this general definition, accommodating the absence would mean to do something that is merely helpful for a public body member in light of the accommodated absence under the OMA.

The OMA clearly has a more narrow definition of “accommodate,” as it requires specific procedures to ensure “something helpful” exists to assist absent public body members who qualify for accommodation (e.g., setting forth how an absent member may participate in, and vote on, business before the public body, and ensuring a system for two-way communication).[4] Therefore, the accommodation provided under OMA is designed to provide for full participation, including deliberations and voting.

Since the OMA now only allows public bodies to accommodate the absence of board members for military reasons, it is difficult to defend a decision to permit participation of board members for other absences. This means that board members absent for non-military reasons should not be given the same benefit as those whose absence is accommodated due to military duty. The safest approach is to not provide any of the procedural protections designed to accommodate the absence of a board member absent for military duty (i.e., not giving them the opportunity to have two-way communication, participate in business, and vote on business before a public body). Generally, board members absent for non-military reasons should be treated like any other member of the public.

This approach does not completely foreclose all methods an absent, unaccommodated board member may use to engage in a meeting. Conceivably, you may permit such absent board members to call/zoom into a meeting in order to hear what is being discussed, but not “participate,” count toward the quorum, deliberate matters, or vote. Further, if the board chooses to afford a remote option for the public to view the meeting and even make “public comments” during a limited part of the meeting, it should do the same for absent unaccommodated board members.

Federal Vaccine Mandates

One of the biggest questions in the last quarter of 2021 has been to what extent federal vaccine mandates will apply to Michigan public sector employers. In broad terms, a “vaccine mandate” is any executive order, legislation, or administrative rule or standard that requires an employer to mandate its staff get vaccinated or submit to routine testing as an alternative. A vaccine mandate is different than a COVID-19 protocol mandate that requires an employer to observe certain safeguards for COVID-19. There are three potentially applicable federal COVID-19 vaccination mandates:

• OSHA’s Emergency Temporary Standard for Private Sector Employers with 100 or more employees (“OSHA ETS”) (Issued November 5, 2021);
• The Centers for Medicare & Medicaid Interim Final Rule for entities that receive Medicare & Medicaid funding (“CMS Vaccine Mandate”) (Issued November 5, 2021); and,
• Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Federal Contractor Vaccine Mandate”)(Issued September 9, 2021).

Federal vaccine mandates have been subject to much litigation. As of December 30, 2021, there has been an emerging trend of courts ruling these mandates are permissible and enforceable. For example, on December 17, 2021, the U.S. Sixth Circuit Court of Appeals lifted the stay blocking the OSHA ETS from taking effect. The Court’s order granting the Government’s motion and dissolving the stay means the Sixth Circuit did not alter what steps covered employers must take to keep their workforce safe.[5] Just recently, the Fifth Circuit Court of Appeals issued a ruling that resulted in the CMS Vaccine Mandate being blocked from taking effect in some states but going into effect in other states (including Michigan).^[6] However, this trend of determining that the federal vaccine mandates are permissible is not without exception. The nationwide injunction blocking the Federal Contractor Vaccine Mandate from taking effect was upheld by the Eleventh Circuit on December 17, 2021.^[7] While the Federal Contractor Vaccine Mandate may be reinstated by subsequent litigation, this mandate is presently blocked from taking effect in Michigan.

The U.S. Supreme Court will hear an oral argument on the lawfulness of the OSHA ETS and CMS Vaccine Mandate on January 7, 2022. The Court may decide to uphold these federal vaccine mandates as written or determine that one or both are wholly or partially unenforceable. Read on to learn more about how these mandates may impact your Township.

OSHA ETS

First, the OSHA ETS will not immediately apply to Michigan public sector employers, because local governments are exempt from the federal OSH Act but covered by Michigan’s MIOSH Act. This means the requirements of the OSHA ETS can only be applied to your Township if the Michigan Occupational Health and Safety Administration (“MIOSHA”) adopts a state-wide analogue of the OSHA ETS. At this time; if, how, and when MIOSHA adopts its analogue to the OSHA ETS is still a moving target. If MIOSHA adopts an emergency standard, it must be “substantially similar” to the OSHA ETS unless other circumstances control. MCL 408.1024(4). Because of this, we suspect that if the U.S. Supreme Court upholds the OSHA ETS, MIOSHA’s state analogue will have similar eligibility requirements (e.g., it will only apply to employers (public and private) with 100 or more employees); provided that MIOSHA may exercise its discretion to make its state analogue more encompassing and applicable to employers with fewer than 100 employees.

CMS Vaccine Mandate

The CMS Vaccine Mandate only applies to municipal governments to the extent the township has contracted to provide service to covered Medicare- and Medicaid-certified providers and suppliers, such as hospices, hospitals, clinics, community mental health centers, and rural health clinics, to name a few).

Federal Contractor Vaccine Mandate

Like the CMS Vaccine Mandate, it would be a rare occurrence that a township became subject to the Federal Contractor Vaccine Mandate if the injunction blocking it is removed. This is because this mandate was designed to apply to federal contractors and subcontractors. Presently, there is no indication that being an ARPA fund recipient leads to a township being subject to the Federal Contractor Vaccine Mandate. If you suspect that your Township may have become subject to the federal contractor vaccine mandate (due to high involvement with federal contractors), consider evaluating contracts executed after September 9, 2021(the day the Federal Contractor Vaccine was announced). If the contract contains a clause that your Township will comply with all guidance for contractor workplace locations published by the Safer Federal Workforce Task Force then your Township is covered by the Federal Contractor Vaccine Mandate if that vaccine mandate is reinstated.

COVID-19 Protocol Mandates Still Exist!

When planning for COVID-19 in 2022, keep in mind that MIOSHA COVID-19 protocol mandates are still in effect.  Consider the perhaps less well-known MIOSHA Coronavirus Disease 2019 (COVID-19) for Healthcare Rules (“MIOSHA Healthcare Rules”) (Link Here). These rules apply to facilities with workers who respond to emergency calls, perform healthcare services and/or transport patients to medical facilities (e.g., municipal first responders like EMS, Fire and Law Enforcement Employees). Only those who work in a setting where care is rendered are covered—not all township employees. 29 CFR § 1910.502(a)(3)(i-ii).

Far from a vaccine mandate, these rules require impacted employers take some additional (and perhaps unsurprising) measures, such as:

• Adopting a COVID-19 Plan Specific to Emergency Responders Covered by the Rule consistent with the requirements of 29 CFR Section 1910.502(c);
• Requiring certain employees wear facemasks consistent with 29 CFR 1910.502(f);
• Conducting daily health screenings of employees as set forth in 29 CFR § 1910.502(l)(1)(ii)
• Requiring employees to isolate or quarantine on account of the employee being impacted by COVID-19
• Adhering to requirements that the township provide covered employees paid leave to secure/recover from vaccination and paid leave for isolation or quarantine purposes.

If you have questions on how these MIOSHA Healthcare Rules apply to your workplace or have questions on the applicability of federal vaccine mandates, please do not hesitate to reach out as our dedicated team would be glad to assist.

Changes to CDC Isolation/Quarantine Guidelines

Due to changes triggered by the Omicron variant, the Centers for Disease Control just modified its guidance on how long individuals who have COVID-19 should isolate, and how long those exposed should quarantine. These changes reduce isolation and quarantine periods in certain circumstances. CDC Updates and Shortens Recommended Isolation and Quarantine Period for General Population (Accessed December 30, 2021)(Link Here).

These changes impact your township’s workplace because Michigan’s COVID-19 Employment Rights Act adopted the CDC’s definitions of “isolation period” and “quarantine period.”[8] Since the law requires employees stay out of the workplace until their “isolation period” or “quarantine period” has ended or other conditions are met, the CDC’s reduced isolation and quarantine periods allows affected employees to report back to work sooner.

All Employees    Vaccinated Employees      Unvaccinated Employees

Please note, Michigan’s COVID-19 Employment Rights Act only imposes a floor and not a ceiling on how long an employee must isolate or quarantine when impacted by COVID-19. You may elect to keep employees out of the workplace longer because of special circumstances, or because tools such as remote work or paid sick leave are available. However, since the decision to extend an employee’s isolation or quarantine period is a context-specific decision, we encourage you to consult your township attorney prior to acting.

Conclusion

The continuing COVID-19 pandemic has brought about widespread change to how local governments conduct business. With more changes being a near certainty in 2022, the continued ability of townships to remain agile and respond to developments will keep operations going to serve communities. The attorneys at Fahey Schultz Burzych Rhodes have been pleased to help throughout this process and remain ready to assist on newly emerging COVID-19 challenges. Please do not hesitate to reach out if we can be of any assistance in this process.

By Jacob Fox

This communication is not intended to constitute legal advice. COVID-19 regulations and guidelines are evolving rapidly and each of your circumstances are unique, so we encourage you to reach out to us if you have questions about this or other COVID-19 related government action.

[1] MCL 15.263(2)(a-b), MCL 15.263a, MCL 15.263(5)

[2] MCL 15.263(4) (a-b)

[3] Merriam Webster, https://www.merriam-webster.com/dictionary/accommodate (accessed November 30, 2021).

[4] MCL 15.263(2)(a)

[5] Massachusetts Building Trades Council, et al. v United States Department of Labor, Occupational Safety and Health Administration, et al., Case Nos. 21-7000 (CA 6) (December 17, 2021) at p 37.

[6] State of Louisiana, et al. v Xavier Becerra, et al., USDC No. 3:21-CV-3970 (CA 5) (December 15, 2021) at p 6.

[7] State of Georgia, et al. v President of the United States (CA 11) (December 17, 2021).

[8] MCL 419.401