Michigan Expands Child Care Access During the COVID-19 Emergency

On March 18, 2020, Governor Whitmer signed EO 2020-16, which allows school districts or nonpublic schools the ability to establish and maintain a temporary “disaster relief child care center” without the required license from the Department of Licensing and Regulatory Affairs (“LARA”) for child care services to children of the “essential workforce.” The Executive Order (“Order”) is effective immediately and will remain in effect until 11:59 p.m. on April 15, 2020, unless extended. The Order allows school districts to respond to the immediate needs of the essential workforce in its county due to shortages or capacity limits in currently operating child care centers. 

School districts may open a disaster relief child care center in school facilities operated by a school district that are currently closed but approved for student use. Early childhood staff, student teachers, teachers, and individuals who provide before and after school care may provide child care in these settings. School districts should first identify employees who voluntarily elect to become a disaster relief child care center participant before reassigning other employees to work in these centers. However, a school shall not require an employee to work in a disaster relief child care center if the employee: (1) has a confirmed case of COVID-19; (2) is displaying symptoms of COVID-19; (3) is 60 years or older; (4) has an underlying condition that places the employee at an elevated risk of serious illness from COVID-19; or (5) has been in contact with someone with a confirmed diagnosis of COVID-19.

Importantly, the Order provides that disaster relief child care centers operated by school districts constitute a pilot program under the Public Employment Relations Act, MCL 423.215(3)(h), so the school has the authority to charge for reasonable and customary services. Decisions regarding implementation or staffing of the disaster relief child care center, or the impact of those decisions on individual employees of a bargaining unit, are a prohibited subject of bargaining. 

For purposes of the Order, a “disaster relief child care center” is defined as a child care center offering child care pursuant to the order. A disaster relief child care center must give priority for its services to the essential workforce but may also provide child care services to the general public as space and governing rules and/or orders permit.

“Essential workforce” includes healthcare workers, home health workers, direct care workers, emergency medical service providers, first responders, law enforcement personnel, sanitation workers, child care workers (including any employees acting as child care workers in essential workforce child care centers), personnel providing correctional services, postal workers, public health employees, key government employees, court personnel, and others providing critical infrastructure to Michiganders (utilities, manufacturing, mass transit, and groceries or other essential supplies, goods or equipment).

Governor Whitmer has asked intermediate school districts to help mobilize and coordinate these efforts in partnerships with local education agencies, employers and early child-care educators. That all relevant state agencies work together and collaborate resources to support disaster relief and determine the current need for additional childcare services for the essential workforce. If you have any questions about this Order, please contact one of the attorneys in Clark Hill’s Education Practice Group.