On March 23, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21 (the “Order”) in response to the COVID-19 pandemic. The Order demands residents to remain at home “to the maximum extent feasible” and prohibits in-person work that “is not necessary to sustain or protect life.” The Order takes effect on March 24, 2020 at 12:01 a.m. and continues through April 13, 2020 at 11:59 p.m. Notably, a willful violation of Executive Order 2020-21 is a criminal misdemeanor. NOTE: The Governor’s office was inundated with questions immediately after issuing the Order, and we expect the Governor’s office to revise the Order or at least provide further guidance in the near future.
Pursuant to the Order, no person or entity shall operate a business that requires workers to leave their homes except to the extent that those workers are necessary (i) to conduct minimum basic operations or (ii) to sustain or protect life.
Workers Necessary to Conduct Minimum Basic Operations
According to the Order, workers who are necessary to conduct “minimum basic operations” are workers whose in-person presence is strictly necessary to allow the business to:
- Maintain the value of its inventory and equipment;
- Care for animals;
- Ensure security;
- Process transactions (including payroll and employee benefits); or
- Facilitate the ability of other workers to work remotely.
While these workers may leave their homes to operate the business to conduct minimum basic operations, they must adhere to social distancing measures recommended by the Center for Disease Control (CDC), including remaining at least six feet away from people outside of the individual’s household.
Once a business has determined which of its workers are necessary to conduct minimum basic operations, the business must inform those workers of that designation in writing
by electronic message, public website or other appropriate means. These designations may only be made orally until March 31, 2020 at 11:59 p.m.
Workers Necessary to Sustain or Protect Life
A. Definition of Critical Infrastructure Workers
For purposes of the Order, workers who are necessary to sustain or protect life are defined as “Critical Infrastructure Workers.” When defining “Critical Infrastructure Workers,” the Order relies on the United States Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency Director’s Guidance, which is available here
. According to the Order, Critical Infrastructure Workers include workers in each of the following sectors:
- Health care and public health
- Law enforcement, public safety and first responders
- Food and agriculture
- Water and wastewater
- Transportation and logistics
- Public works
- Communications and information technology, including news media
- Community-based government operations
- Critical manufacturing
- Hazardous materials
- Financial services
- Chemical supply chains
- Defense industrial base
The Order also designates the following workers as Critical Infrastructure Workers:
- Child care workers, but only to the extent necessary to serve the children or dependents of Critical Infrastructure Workers;
- Workers in the insurance industry if their work cannot be done remotely;
- Workers and volunteers that provide food, shelter and other necessities for the economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of COVID-19 and/or individuals with disabilities;
- Workers who perform critical labor functions, including those who administer health and welfare funds and monitor the safety of union members who are Critical Infrastructure Workers; and
- Workers at designated suppliers and distribution centers (described below).
The Order also allows businesses who employ Critical Infrastructure Workers to designate additional suppliers, distribution centers and service providers (“Additional Entities”) whose operation is necessary to allow the business to maintain its work. Such Additional Entities may designate its workers as Critical Infrastructure Workers if those workers are necessary to support the designating business. The Additional Entities may in turn designate additional suppliers, distribution centers and service providers whose operation is necessary to allow the Additional Entities to maintain their work.
Businesses, suppliers, distribution centers and service providers must make all designations in writing
to the entities they are designating, whether by electronic message, public website or other appropriate means. These designations may only be made orally until March 31, 2020 at 11:59 p.m.
B. Limits on Businesses Employing Critical Infrastructure Workers
Businesses that employ Critical Infrastructure Workers may continue in-person operations, albeit subject to a number of conditions. Businesses maintaining in-person activities must:
- Determine which of its workers are Critical Infrastructure Workers.
- Inform Critical Infrastructure Workers of their designation as such in writing, by electronic message, public website or other appropriate means. These designations may only be made orally until March 31, 2020 at 11:59 p.m. Businesses do NOT need to designate:
- Workers in health care and public health;
- Workers who perform necessary government activities, i.e. are workers in critical infrastructure, law enforcement, public safety, first responders, public transit, trash pick-up and disposal, election management, maintenance of safe and sanitary parks; or
- Workers and volunteers who provide food, shelter and other necessities to the economically disadvantaged, individuals who need assistance as a result of COVID-19 and/or people with disabilities.
- Determine if there are any suppliers, distribution centers and/or service providers that are necessary to maintain its operations and if so, inform those entities of their designation as such in writing, by electronic message, public website or other appropriate means. These designations may only be made orally until March 31, 2020 at 11:59 p.m.
- Suspend in-person activities that are not necessary to sustain or protect life.
- Adopt social distancing practices and adopt mitigation measures to protect workers and patrons by:
- Limiting the number of in-person workers to the number that is strictly necessary to perform business operations;
- Promoting remote work;
- Adhering to six-feet social distancing rules;
- Increasing standards of facility cleaning and disinfection;
- Adopting policies to prevent workers who exhibit COVID-19 symptoms or who have had contact with a person known or suspected to have COVID-19 from entering the premises; and
- Adhering to other social distancing practices and mitigation measures recommended by the CDC.
We have organized a cross-disciplinary legal team to help answer questions regarding the Order. If you have any questions or concerns related to the Order, please reach out to Troy Cumings, Matthew Johnson, Michael Brady or your Warner client manager.