In response to the ongoing COVID-19 pandemic, Michigan Gov. Gretchen Whitmer issued Executive Order 2020-42 (Order), which took effect on April 9 at 11:59 p.m. and extends the mandatory stay-at-home restrictions for all Michigan residents to April 30, 2020. The Order reaffirms, clarifies and extends the duration of the restrictions imposed under Executive Order 2020-21 (Rescinded Order), which we discussed in a previous article. However, the new Order also imposes additional obligations on businesses that continue in-person work as well as those that remain open to the public, such as capacity and marketing restrictions. These new restrictions most notably affect stores that remain open to the public to sell items such as groceries, medical supplies or other similar goods.
What additional requirements does the Order impose on businesses?
The Order continues to require that, subject to specified exceptions, “all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.” As with the Rescinded Order, exceptions to these restrictions include several different categories of activities and types of workers with which most are now familiar, such as those for “minimum basic operations” and “critical infrastructure.” However, the new Order adds the following to the list of “critical infrastructure workers:”
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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
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workers at laundromats, coin laundries, and dry cleaners
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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, and
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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.
Additionally, the Order now requires businesses to “[d]evelop[] 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 and available here. Such plan must be available at company headquarters or the worksite.” Further, businesses must now adopt “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.” This is a change from the Rescinded Order’s similar requirement, which required that these policies address workers who “display[ed] respiratory symptoms or had contact with a person who is known or suspected to have COVID-19.”
For those businesses that are “suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work,” they may now self-designate as such and no longer have to wait for designation from a third party. However, the requirement that these businesses restrict the workers they designate to “only those workers whose in-person presence is necessary to enable, support, or facilitate such work” remains.
Moreover, for stores that remain open to the public in order to sell groceries, medical supplies or other similar goods, the Order requires that they:
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Establish lines to regulate entry in accordance with subsections (c) and (d) of this section, 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.
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Consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
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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.
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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. The amount of customer floor space must be calculated to exclude store areas that are closed under subprovision (2) of this subsection.
- Close areas of the store—by cordoning them off, placing signs in aisles, posting prominent signs, removing goods from shelves, or other appropriate means—that are dedicated to the following classes of goods:
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Carpet or flooring
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Furniture
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Garden centers and plant nurseries
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Paint.
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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.
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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.
The Order further authorizes the director of the Michigan Department of Health and Human Services to issue emergency orders varying the capacity limits described above, so businesses should monitor the department’s website for additional information.
Finally, the Order now includes a restriction on advertising or renting “a short-term vacation property except as necessary to assist in housing a health care professional or volunteer aiding in the response to the COVID-19 crisis.”
Recommendations for Businesses Open to the Public
As discussed in our previous article, a willful violation of the Order is a misdemeanor. Considering the Order is already in effect, businesses must promptly revise their policies and procedures to comply with the Order. To that end, we recommend that businesses:
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immediately develop and adopt a COVID-19 preparedness and response plan
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review and assess store capacity and occupancy requirements to comply with the reductions required by the Order
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develop and implement procedures and infrastructure to manage lines of patrons, which allow them to remain at least six feet apart
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consider developing a procedure for curbside ordering and pickup to minimize congestion to the maximum extent possible
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evaluate and modify all marketing campaigns to comply with the restrictions on advertising for nonessential goods
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continuously monitor the state’s coronavirus website for additional guidance.
Additionally, to limit any potential liability for violations of the Order, commercial landlords may want to send notices to their tenants regarding the additional requirements imposed on businesses that remain open to the public.
