Michigan Governor Gretchen Whitmer announced this morning that, effective Tuesday, March 24 at 12:01 a.m. and continuing through at least April 13, all residents of Michigan are subject to a stay-home, stay-safe at home Executive Order.  On April 9, 2020, Governor Whitmer issued Executive Order 2020-42, extending the “stay home, stay safe” order through April 30, 2020 and modifying its scope.  The April 9 Order also formally rescinds the original March 24 Order. Relevant sections of this alert that have been modified as a result of the newly issued Order may be found below in RED. 

The April 9 Order includes a number of changes to the provisions of the March 24 Order. These include: 

• Promulgating a list of required social distancing practices for ongoing in-person business, operations, and government activities. These include a general list for all activities as well as extensive additional requirements for stores that remain open for in-person sales.
• Explicitly rejecting any CISA guidance promulgated after March 19, 2020 regarding what constitutes “critical infrastructure.”
• Barring travel between two residences in the state of Michigan after April 10. 
• Prohibiting advertising or renting short-term vacation property except as necessary to assist in housing COVID-19 responders. 
• Clarifying that hotels and motels may operate (with limited services).
• Permitting motor vehicle dealerships to engage in electronic sales and vehicle delivery.
• Clarifying that workers at laundromats and dry cleaners may be considered essential.
• Permitting attendance at funerals (with less than 10 people). 

All nonessential business operations not necessary to sustain or protect life or to maintain minimum basic operations have been ordered to cease.

In addition, Michiganders are ordered to stay home as much as possible. Residents are permitted to visit: (1) grocery stores; (2) restaurants for take-out; (3) hospitals and medical centers; (4) pharmacies; (5) gas stations; and (6) banks, among other essential businesses.  

Two categories of businesses and workers are exempt from the Order:

1.  Critical Infrastructure Workers

Critical infrastructure workers and those necessary to sustain or protect life are exempt from the Order. This designation includes those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his March 19th guidance (available here), and certain workers in the following sectors: 

• Health care and public health. 
• Law enforcement, public safety, and first responders. 
• Food and agriculture. 
• Energy. 
• Water and wastewater. 
• Transportation and logistics. 
• Public works. 
• Communications and information technology, including news media. 
• Other community-based government operations and essential functions. 
• Critical manufacturing. 
• Hazardous materials. 
• Financial services. 
• Chemical supply chains and safety. 
• Defense industrial base. 
• Workers who perform necessary government activities, as defined in the Order. 
• Child care workers. 
• Workers at designated suppliers and distribution centers.  
• Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely. 
• Workers and volunteers for businesses or operations (including both and religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals.
• Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers.
• Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers. 
• Workers at laundromats, coin laundries, and dry cleaners.
• Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
• Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.

The April 9 Order additionally specifies that any subsequent CISA guidance promulgated later than March 19, 2020 on critical infrastructure designations is not adopted by the Order. 

Note that even for businesses operating within the foregoing categories, not all employees are considered “critical infrastructure workers.”  Businesses must determine which of their workers are “critical infrastructure workers” and inform such workers of that designation.  That designation may be made orally through March 31, and must be made in writing thereafter, subject to certain exceptions set forth in the Order. The April 9 Order clarifies that workers need not carry copies of their designations with them when they leave the home or place of residence for work. 

2.  Workers Necessary to Conduct Minimum Basic Operations  

In addition, workers necessary to maintain minimum basic operations at any business are permitted to continue work. This includes workers 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.

Requirements Applicable to all Businesses

Importantly, the Order requires all essential businesses to take proactive measures to ensure compliance with social distancing recommendations of the Centers for Disease Control, and requires employers to determine which of their workers are necessary to conduct minimum basic operations. The April 9 Order clarifies that workers must be notified of this designation in writing, but need not carry copies of their designations with them when they leave the home or place of residence for work. 

The process for identifying which entities qualify has changed from the March 23 Order to the April 9 Order. The March 23 Order required that suppliers, distribution centers or service providers supporting critical infrastructure workers had to be designated in writing. The April 9 Order simply states that those suppliers, distribution centers or service providers may continue to operate to the extent required to support critical infrastructure work. 

Finally, the April 9 Order promulgates a list of the social distancing practices which businesses continuing in-person work must adhere to in order to remain in operation. These include: 

• Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration. Such plan must be available at company headquarters or the worksite.
• Restricting the number of workers present on premises to no more than is strictly necessary to perform the business's, operation's, or government agency's critical infrastructure functions or its minimum basic operations.
• Promoting remote work to the fullest extent possible.
• Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
• Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
• Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
• Adopting any other social distancing practices and mitigation measures recommended by the CDC.
  For stores that remain open for in-person sales, the requirements are more stringent. In addition to the general requirements, each in-person sales establishment must: 
• Establish lines to regulate entry, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
• Consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
• For stores of less than 50,000 square feet of customer floor space, limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
• For stores of more than 50,000 square feet: 
  • Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space. 
  • Close areas of the store dedicated to carpet or flooring, furniture, garden centers and plant nurseries, and paint. 
  • By April 13, 2020, refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.
  • Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.

In conjunction with these amended requirements, the April 9 Order additionally requires individuals to limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands. 

For additional web-based resources available to assist you in monitoring the spread of COVID-19 on a global basis, you may wish to visit the CDC and the World Health Organization. 

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