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Small Business Compliance with Gov. Whitmer’s Executive Order No. 2020-21

March 26, 2020

Effective Tuesday March 24, 12:01 am, employers with certain exceptions, were ordered by Governor Whitmer to cease all operations that cannot be performed by employees working remotely from their homes.  “Individuals” residing in Michigan, including employees, are similarly ordered to “stay at … their residence,” again with certain exceptions which are outlined below.  To be clear the order is serious in its nature and to give it the most broad effect, it is to “be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.  Following are the obligations for business in Michigan. We have heard from many members that they are thinking of staying open.  We understand this instinct, but we also understand the Governor’s EO.  If you are thinking of staying open, please use this simple exercise when making that decision: You are standing before a judge – explain to the judge why you made the decision that you made…   The Order is available here.

EMPLOYER OBLIGATIONS

Fundamental Prohibition on In-Person Work

Gov. Whitmer’s executive Order Section 4 is the most relevant to business and it states:

“No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”

In layman’s terms, businesses that remain open must be:

  • Necessary to sustain or protect life, or

  • Necessary to conduct the minimum basic operations of the Employer.

Clear as mud?  Read on.

Some workers are allowed

Workers expected to perform “minimum basic operations” as permitted under Section 4 are those “whose in-person presence is strictly necessary to allow the business or operation to maintain the value of 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..

There are Exceptions – Critical Infrastructure Workers are Permitted to Perform In-Person Work

Some employees are permitted to engage in in-person work.  These employees are referred to as “critical infrastructure workers,” EO 2020-21 has adopted the definition and terms from  “Memorandum on Identification of essential Critical Infrastructure Workers During COVID-19 response issued March 19, 2020, and available here. Federal guidance adopted in the EO limits critical infrastructure workers to those “who conduct a range of operations and services that are essential to continued critical infrastructure.” This federal guidance includes an industry-specific discussion, “Identifying Essential Critical Infrastructure Workers.”  You can find this on page 4 of the CISA memorandum. It reads that workers in the identified sectors may or may not be allowed to engage in in-person work, and it remains the responsibility of the Employer to determine that each “critical infrastructure worker” is properly categorized. The Michigan Executive Order adopts the following sectors as identified in the federal guidance:

  1. Health care and public health.

  2. Law enforcement, public safety, and first responders.

  3. Food and agriculture.

  4. Energy.

  5. Water and wastewater.

  6. Transportation and logistics.

  7. Public works.

  8. Communications and information technology, including news media.

  9. Other community-based government operations and essential functions.

  10. Critical manufacturing.

  11. Hazardous materials.

  12. Financial services.

  13. Chemical supply chains and safety.

  14. Defense industrial base.

 Executive order 2020-21 also includes the following list businesses:

  1. Child care workers serving dependents of critical infrastructure workers.

  2. Workers in designated supply and distribution centers, including workers needed to supply or distribute to other such centers. There are specific criteria for this category and “[b] businesses … that abuse their [supplier/distributor] designation authority shall be subject to sanctions to the fullest extent of the law.” EO 9.b.6.

  3. Insurance industry.

  4. the provision of “food, shelter, and [life] necessities” to persons who are (a) economically disadvantaged, (b) otherwise needy, (c) disabled, or who (d) need assistance due to the Coronavirus emergency. The Governor, in guidance issued after the EO, clarified that hotels and places of lodging provide critical infrastructure to the extent that the customers of those businesses are providing mitigation or containment efforts or are themselves critical infrastructure workers of other employers.

  5. Labor union officials including benefit fund administrators.

The next question we have received deals with the obligations of Employers Intending to Continue Operations.  Again, we suggest you think of this as if you are standing before a judge and explaining your decision to keep your business open.

First, you have a responsibility to Designate Critical Infrastructure Workers

Businesses that continue in-person operations under the Executive Order must designate and inform their workers. Designations must be paper or electronic writing after March 31, until then, designations may be oral.  SBAM has a sample form on our website that you can use.

Keep in mind that not all businesses must take this step.  Companies involved in the following lines of business are exempt from required designations:

  • “health care and public health” services;

  • “necessary government activities;” and,

  • community shelter, food and life necessities operations as described above.

Suspension of non-essential activities.  After that, to comply with the executive Order, Your Business Has a Duty to Suspend Other Operations.  For example:

An Employer that continues to operate with permitted in-person workers must suspend all other operations. For example, a manufacturer that in making surgical masks/ventilators and components to radio controlled cars, can continue that line of business related to the masks/ventilators bust must suspend other lines.  

Social Distancing Practices

Additionally, if your business is remaining open, you must adopt social distancing procedures including adoption of the most restrictive practices on workplace access, promoting remote work “to the fullest extent possible,” screening and requiring symptomatic workers and workers with possible exposure to COVID-19 to remain away from the workplace, and engaging in robust workplace hygiene and disinfectant practices. Stringent and aggressive fulfillment of this duty may predictably be expected under the General Duty clause of the Occupational Safety and Health Administration Act (OSHA) in later review actions.

If your business is staying open, it is recommended to comply with the Executive Order that your business immediately:

  • Adopt these required social distancing policies in writing,

  • Where workers have public contact, adopt policies that apply social distancing requirements to the public persons coming in contact with workers, including pre-access screening for travel, exposure and other risk factors, and

  • Post, publicize, and train all workers of all such policies and requirements.

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