Joining California, Delaware, Illinois, Louisiana, Massachusetts, New Jersey, New York, Ohio, as well as multiple counties and cities, on March 23, 2020, Michigan’s Governor Gretchen Whitmer issued Executive Order 2020-21 (COVID-19) (“Order”), ordering that all Michigan residents “shelter in place” in response to the novel coronavirus (“COVID-19”), effective 12:01 a.m. on Tuesday, March 24, 2020, and continuing through April 13, 2020, at 11:59 p.m.

Among other things, the Order prohibits an employer from requiring its workers to leave their homes, unless they are necessary to sustain or protect life, or to conduct minimum basic operations.

The following are the key portions of the Order that are applicable to businesses:

• The Order will be “construed broadly” to prohibit “in-person work that is not necessary to sustain or protect life.
• Workers may leave their place of residence to operate a business or conduct operations if they are necessary to (1) “sustain or protect life” or (2) “conduct minimum basic operations”:
  • Workers “necessary to sustain or protect life” are “critical infrastructure workers,” as described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020, on the COVID-19 response, which include workers in each of the following sectors:

            (a) Health care and public health

            (b) Law enforcement, public safety, and first responders

            (c) Food and agriculture

            (d) Energy

            (e) Water and wastewater

            (f) Transportation and logistics

            (g) Public works

            (h) Communications and information technology, including news media

            (i) Other community-based government operations and essential functions

            (j) Critical manufacturing

            (k) Hazardous materials

            (l) Financial services

            (m) Chemical supply chains and safety

            (n) Defense industrial base

            In addition, “critical infrastructure workers” also include:

            (a) Child care workers, but only to the extent necessary to serve the children or dependents of “critical infrastructure workers”

            (b) Workers at certain suppliers and distribution centers designated by “critical infrastructure” businesses, such as suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of its “critical infrastructure workers”

            (c) Workers in the insurance industry, but only to the extent that their work cannot be done remotely

            (d) Workers and volunteers for businesses that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities

            (e) 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, provided that any administration or monitoring should be done remotely where possible

• • Workers “necessary to conduct minimum basic operations” are those whose in-person presence is “strictly necessary” to allow the business or operation to:

(a) maintain the value of inventory and equipment

(b) care for animals

(c) ensure security

(d) process transactions (including payroll and employee benefits)

(e) facilitate the ability of other workers to work remotely

NOTE: Employers must determine which of their workers are necessary to sustain or protect life and/or conduct minimum basic operations, and inform such workers of that designation, in writing, whether by electronic message, public website, or other appropriate means. Such designations, however, may be made orally until March 31, 2020, at 11:59 pm. Moreover, designations are not necessary for the following: (a) workers in health care and public health; (b) workers who perform necessary government activities; and (c) workers and certain specifically identified volunteers, such as those at businesses or operations that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, and people with disabilities.

The Order also requires any businesses or operations maintaining in-person activities, as well as anyone leaving his or her place of residence, to adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.

Epstein Becker Green will continually monitor how the COVID-19 pandemic will impact Michigan employers and provide updates. 

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