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April 6 2020

Increased Enforcement of Critical Infrastructure Designations in the Stay Home, Stay Safe Order

By: Nathaniel R. Wolf, Scott E. Dwyer, and Nikole L. Canute

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.  Workers necessary to sustain or protect life are identified as critical infrastructure workers.  Mika Meyers previously addressed the impact of the Order here: https://www.mikameyers.com/news/article/how-is-my-business-affected-by-the-stay-home-stay-safe-order.

Since enactment of the Order, employers and attorneys have worked hard to determine which operations of various employers are considered essential critical infrastructure and to properly designate workers and suppliers who are necessary to sustain or protect life or to conduct minimum basic operations.  Fully understanding the applicability of the Order is important because in recent days the State of Michigan has increased its efforts to enforce the Order and assure public health objectives are being prioritized.

For example, reports indicate that retail companies have received cease and desist orders from Michigan’s attorney general for reasons such as engaging in sales and marketing activities which are designed to attract customers for non-essential purposes, for operating a smoke shop, and for operating a carwash.  Based on cease and desist letters released to the public, the attorney general has emphasized that the Order is to be “construed broadly to prohibit in-person work that is not necessary to sustain or protect life.”  By its terms, the Order states that a violation is a misdemeanor, subjecting violators to fines and possible jail time.

Additionally, on April 2, the Michigan Department of Health and Human Services issued an emergency order requiring compliance with the Order and its accompanying frequently asked questions.  Those found to be in violation are subject to fines of up to $1,000 per violation or per day that a violation continues.  Additionally, any party found to be in violation of the Order must be referred to the applicable licensing agencies for additional enforcement.  Suspension or termination of a license may prohibit a business’s continued operation in the State of Michigan.

Some employers have had difficulty determining the extent to which the workers they employ qualify as critical infrastructure workers, especially to the extent an employer has been designated as a supplier which supports critical infrastructure workers by means of a blanket designation letter received from a customer.  Many employers have needed to work collaboratively with their customers and legal advisors to determine which of their employees need to be designated as critical infrastructure workers so they can meet their obligations to support critical infrastructure workers while maintaining compliance with the Order.

Further, much of the guidance included within the Cyber and Infrastructure Division of the Department of Homeland Security’s Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response published on March 19, which was explicitly incorporated into the Order, was ambiguous and required significant analysis to determine the extent to which certain workers qualify as critical infrastructure workers.  Additional ambiguity was introduced on March 28 when the Cyber and Infrastructure Division of the Department of Homeland Security updated its Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.  This updated guidance expanded and clarified the definition of critical infrastructure to include new professions in the food and agriculture, critical manufacturing, energy, transportation, and technology industries.  However, neither the governor nor the attorney general has referenced the updated memorandum in any order, guidance, or regulation.  Indeed, the Order still includes a link to the March 19, 2020 CISA guidance, and not the guidance updated on March 28, 2020.  As a result, the extent to which shifting national guidance applies to Michigan is unclear.  Thus, employers need to work to understand the extent to which they are acting in compliance with Michigan’s law, even as guidance in other states evolves and places pressure on interconnected supply chains.

It is critical that employers understand which professions qualify as critical infrastructure in the face of evolving national guidance and increased enforcement of, and confusion over, Executive Order 2020-21. 

For advice regarding which industries and employees qualify as critical infrastructure contact your Mika Meyers attorney, Nikole Canute, Scott Dwyer, or Nate Wolf.