On March 23, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21, also referred to as the “Stay Home, Stay Safe” order (the “Order”). The basic effect of the Order is to suspend all activities within the State of Michigan that are not necessary to sustain or protect life, in effect, ordering all individuals in Michigan to stay at home.
The Order recognizes certain exceptions, providing that businesses and public employers may conduct operations that require workers to leave their homes to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations. Thus, businesses and public employers need to examine two threshold matters:
- What ongoing operations, if any, are necessary to sustain or protect life? and
- Which workers are necessary to provide for the conduct of minimum basic operations?
1. What operations and businesses are necessary to sustain or protect life?
Workers who are necessary to sustain or protect life are those who are defined as “critical infrastructure workers.” The Order identifies certain critical infrastructure sectors, including those defined by the U.S. Cybersecurity and Infrastructure Security Agency, although the Order clarifies that only some workers in various industries will qualify as “critical infrastructure workers.” The CISA guidance is available here: https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf
If a worker is deemed to be a critical infrastructure worker, the person must be designated as a critical infrastructure employee in writing, except for workers in the healthcare industry, workers performing necessary government activities, and certain other workers and volunteers such as those who provide food, shelter, and other necessities for needy individuals, individuals requiring assistance as a result of COVID-19, and people with disabilities. As employers initially determine who qualifies as critical infrastructure workers, they may notify employees orally, provided that by 11:59 on March 31 critical infrastructure workers must be identified in writing subject to the exceptions identified above.
Most employers will require assistance in determining what operations qualify as supporting critical infrastructure because of the broad manner in which the Order is written, although certain employees performing necessary government activities are explicitly identified within the Order, including workers in law enforcement, public safety and first responders. Additionally, necessary government activities are deemed to include public transit, trash pick-up and disposal, activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks.
In addition to designating employees who are critical infrastructure workers, a business may designate in writing the suppliers, distribution centers, or service providers who are necessary to enable, support, or facilitate the work of the business’s critical infrastructure works. In turn, suppliers, distribution centers and service providers may designate critical infrastructure workers only to the extent necessary to support or facilitate the operations of the original operation’s critical infrastructure workers. Many critical infrastructure businesses have already begun sending letters to their vendors indicating the extent to which the supplier or service provider’s continued operation is necessary to support a critical infrastructure project.
Complicating matters is that some employers operate as suppliers within critical infrastructure sectors which serve out-of-state or out of country customers who are not currently subject to any shelter in place order. To the extent those customers are attempting to continue production on previously defined timelines, which the project is deemed to be critical and which workers are necessary to complete the project, the employers should seek a designation in writing from the customer that the employer has been designated as a critical infrastructure supplier or distributor. Your attorney can help you prepare the required documents to evidence this designation.
To the extent companies operate between March 24 and April 13 because they serve a critical infrastructure sector, they must alter operations in the following manner:
Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s or operation’s critical infrastructure functions.
- Promoting remote work to the fullest extent possible.
- Keeping workers and patrons who are on premises at least 6 feet from one another to the maximum extent possible
- Increasing standards of facility cleaning and disinfection, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace
- Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19
- Any other social distancing practices and mitigation measures recommended by the Centers for Disease Control
These changes must be implemented immediately, meaning if a business is continuing to operate, it must have practices in place to promote social distancing, it must have arranged for increased facility cleaning, it must have adopted a protocol to address cleaning and disinfecting in the event of a positive COVID-19 case, and it must have adopted a policy to prevent workers who may be ill or have been in contact with someone who may have COVID-19 from entering the workplace.
2. Which workers are necessary to provide for the conduct of minimum basic operations?
Workers who are necessary to provide for the conduct of minimum basic operations are those whose in person presence is necessary to allow a business to maintain the value of its inventory and equipment, care for animals, ensure security, process transactions such as payroll, and facilitate the ability of others to work remotely.
As noted above, to the extent a worker is necessary to provide for the conduct of minimum basic operations for a government entity, the worker need not be designated in the manner otherwise required.
Violations of the Order are punishable as a misdemeanor.