When Can We Return To Normal? A review of the Michigan Supreme Court's Return to Full Capacity Plan

Berton K. May

Everyone in Michigan has felt the fallout from the COVID-19 pandemic, both in their personal and business lives.  Garan Lucow Miller stands ready and willing to help you navigate through these confusing times on a very effective and efficient basis.  As such, we have been closely tracking how the courts have been responding and operating in light of the Governor’s Executive Orders.

The Michigan Supreme Court has taken steps in addressing how and when the courts may be able to resume normal procedures, publishing a Return to Full Capacity guide.  The guide, however, notes that each local jurisdiction must make decisions based upon their specific circumstances.  This leaves a great deal of discretion up to the local judges and court administrators.  The Supreme Court also points out that “Full Capacity” takes on a new meaning since the COVID-19 pandemic started.   “Full Capacity” now means the courts should continue to use virtual proceedings when possible and that they should only require in-person attendance “when absolutely necessary”.   In addition, continued work from home for court employees should be used “when it makes sense to do so.”  For example, any employee that is sick should not be working at the courthouse, but working remotely.

The Supreme Court has instituted a “phased approach” to getting the courts back up and running.  Before a court may start their phased approach, they must be able to meet the initial threshold or “gating” requirements:  1) No COVID-19 confirmed or suspected cases within the courthouse facility within 14 days, and deep cleaning of the facility,  2) downward trajectory of documented cases within the local community for at least 14 days, and 3) removal of local and state Stay at Home orders, and indications that the local health care facilities can treat all current patients.

All courts must initiate ongoing guidelines that include, but are not limited to: 1) social distancing and protective equipment, 2) notification, isolation and tracing procedures of new cases, 3) sanitation and disinfection of common and high-traffic areas, 4) addressing business travel, and 5) reasonable accommodations for employees (such as availability of day care, etc.).  There are also procedures for evaluating employees which include confirming  a lack of the following:  fever greater than 100.4, cough, shortness of breath, fever, chills, shaking with chills, muscle pain, headache, sore throat, and recent loss of taste or smell.

In addition to the above screening questions, visitors to the courthouse should be asked if they have any of these symptoms or have been in contact with someone diagnosed with COVID-19 within the past 14 days.   As an aside, this will significantly slow down the building entry process and should be considered when estimating your travel time.

In Phase 1, the common areas, such as courtrooms and dining areas, should be closed to the extent possible or limited to 10 or fewer people at a time.  Social distancing should be maintained including in all work areas.  Face coverings are recommended at all times.  Visible markers (such as tape) should be used to demonstrate 6 foot intervals.  Staggered appearance or arrival times should also be used.

In Phase 2, limited public access areas should be noted, and use of screening criteria, disinfecting and cleaning common areas should continue.  Common areas can open to the public with no limitation on the number of visitors as long as 6 foot physical distancing can be maintained, which should be noted with markers such as tape.

In Phase 3, there is a potential for termination of the enhanced screening questions.  Cleaning and disinfecting should continue, and common areas should continue to utilize 6 foot physical distancing unless lifted by the CDC.

In Phase 4, all employees can return to normal activities and social gatherings, and all common areas will be reopened without any restrictions or distancing required.

The Supreme Court’s plan has some charts and sample documents that assist in creating the necessary structure and setting forth timelines.  But, the real question is “When are the courts returning to normal?”   The simple answer is, no one knows.  Each court is going to have a different opening time-frame.   As we are still under the stay-at-home order, we have not reached Phase 1 yet.   We do know that some courts are working with full staff and full electronic filing capability so they will be ahead of the curve when the opening becomes formal.