On March 29, 2020, Michigan governor Gretchen Whitmer signed an executive order that grants limited immunity to hospitals and healthcare workers in their fight against COVID-19. In a statement, Whitmer said, “This executive order temporarily sets aside some existing rules to allow qualified physician assistants, nurses, and other health care providers to treat COVID-19 patients and help slow the spread of this virus in every corner of our state.”
Immunity for Michigan’s Healthcare Workers
Executive Order 2020-30 grants “temporary relief from certain restrictions and requirements governing the provision of medical services,” on the grounds that such relief is “reasonable and necessary” in order to allow healthcare providers to respond effectively to the COVID-19 pandemic.
Whitmer’s executive order begins by temporarily suspending the provisions in Michigan’s Public Health Code, MCL 333.16101, that related to the scope of practice, supervision, and delegation to allow healthcare workers to provide the care or do the tasks necessary to that facility’s response to the COVID-19 pandemic. This provision only applies to “licensed, registered, or certified health care professionals” carrying out tasks “appropriate to the professional’s education, training, and experience.”
The executive order specifies that it allows medical services to be provided by certain non-physicians, even if no physician is available to supervise.
The executive order also temporarily authorizes designated health care facilities to allow students, such as medical students and nursing students, to work “in whatever roles that are necessary to support the facility’s response to the COVID-19 pandemic,” as long as the roles are appropriate to the student’s education, training and experience. Medical students, physical therapists, and emergency medical technicians may also work as “respiratory therapist extenders,” so long as they are supervised by a physician, respiratory therapist, or advanced practice registered nurse.
Relaxed Rules for Licensure and Volunteer Work
Ordinarily, Michigan requires healthcare workers to be licensed within the state of Michigan in order to practice their profession. For the purposes of addressing the COVID-19 pandemic, however, Whitmer’s executive order temporarily suspends penalties for those practicing healthcare professions without a Michigan license, as long as the healthcare worker is “licensed and in good standing in any state or territory in the United States.” The provision does not apply to those whose licenses have been suspended, revoked, or face pending disciplinary action.
Hospitals and health care facilities may also rely on qualified volunteers or personnel who are affiliated with other health care facilities. For instance, a hospital may bring in physicians to help handle the COVID-19 pandemic, even if those physicians do not have admission privileges at that hospital. Under the executive order, the healthcare professionals who work at a facility are treated as if they are affiliated with that facility.
Unlicensed volunteers and students may also help hospitals and health care facilities with tasks related to the pandemic. The governor’s executive order designates these volunteers and students as “personnel of a disaster relief force,” as that term is used in Michigan’s Emergency Management Act, MCL 30.411. As personnel of a disaster relief force, these individuals have the same rights and immunities as any state employee, which are listed in MCL 30.411(1)(c).
A series of separate executive orders by Governor Whitmer and other U.S. state governors have continued to suspend a number of “non-essential” services. In recognition of this reality, Executive Order 2020-30 temporarily suspends such requirements for licensing or license renewals. If exams, fingerprinting, or continuing education have been suspended due to the pandemic, healthcare professionals are not required to obtain them to secure their license or license renewal, even if their license expires during that time.
Similarly, those with certifications in basic life support, advanced cardiac life support, or first aid can rely on those credentials to stay current while the Governor’s emergency declaration is in effect, even if their expiration date falls during the emergency declaration.
Liability for Injuries
Section 7 of the governor’s executive order specifically addresses liability. It temporarily protects licensed health care professionals and designated facilities from liability for injuries sustained due to simple negligence. Injuries caused by gross negligence, however, will still expose the provider or facility to civil liability.