On April 9, 2020, Governor Whitmer issued Executive Order 2020-42 (“Order”). The Order takes effect on that date at 11:59 pm and continues through April 30, 2020 at 11:59 pm, unless modified.
The Order reaffirms, clarifies and extends previous measures imposed by Executive Order 2020-21 and rescinds the order. Although the Order contains much of the language of Executive Order 2020-21, there are significant changes that affect both individuals and businesses. They are as follow:
Designation by Upstream Business Eliminated
A business employing critical infrastructure workers can no longer designate a supplier, distribution center or service provider as necessary to support its critical infrastructure workers. The language “A business or operation that employs critical infrastructure workers may designate suppliers, distribution centers, or service providers..” has been removed. The change eliminates reliance based upon a written designation provided by upstream critical infrastructure workers and puts the burden on each business to determine its role in the critical infrastructure framework.
Work must be Necessary
The Order contains language allowing downstream suppliers, distribution centers, and service providers to designate their own workers as critical infrastructure workers to “enable, support, or facilitate the necessary work of critical infrastructure workers” (emphasis added). The added language prevents downstream suppliers or service providers from servicing non-essential business activities conducted by critical infrastructure workers.
Adoption of COVID-19 Response Plan
A business conducting minimum basic operations or employing critical infrastructure workers must adopt a written COVID-19 preparedness and response plan that complies with Guidance on Preparing Workplaces for COVID-19 developed by the Occupational Health and Safety Administration. The written plan must be maintained at a work-site or corporate headquarters.
“Critical Infrastructure Worker” – Additions and Clarifications
The general definition of critical infrastructure worker i.e. as defined in the “Director of the U.S. Cybersecurity and Infrastructure Security Agency guidance of March 19, 2020 on the COVID-19 response”, is unchanged. The Order makes clear that no subsequent guidance by the agency is relevant for purposes of applying the Order. Executive Order 2020-21 provided an additional category of workers to be considered critical infrastructure workers, including child-care workers needed for children of critical infrastructure workers, certain volunteers, suppliers, distributors and service providers necessary to support critical infrastructure workers and workers performing critical labor union functions. The Order has expanded the list to include:
- Retail workers supporting safety, sanitation and basic residential operations including grocery, medical supply, pet supply, auto supply, hardware, home maintenance and home appliance retailers;
- Workers at laundry, coin -op and dry cleaning facilities;
- Workers at hotels and motels but not for purposes of providing on-site amenities like gyms, pool, restaurants or meeting facilities;
- Workers at auto-dealers to support electronic purchasing and leasing only;
Requirements for Retail Facilities
A business that remains open to the public must regulate and limit entry by the public and take other measures to enforce social distancing. These include establishing lines for entry that require and mark a distance of six feet between patrons. Additional measures to support seniors and the disabled and reduce traffic are encouraged.
Stores of less than 50,000 square feet of customer floor space must limit customer/ employee presence to 25% of the limit established by the state or local fire marshal.
Stores of more than 50,00 square feet of customer floor space must:
- Limit customer presence to 4 persons per 1000 feet;
- Close off areas containing carpet, flooring, furniture, gardening/ nursery and paint;
- Schedule weekly period of at least two hours of shopping time for elderly, pregnant and chronically ill patrons;
- Discontinue advertising for non-essential goods after April 13, 2020;
The Order provides authority for the director of the Department of Health and Human Services to issue an order further varying capacity limits as necessary to protect public health.
Changes Affecting Individuals
The Order continues to require a business to provide written designation to its critical infrastructure workers or to workers necessary for minimum basic operations. The Order clarifies that workers do not need to carry a copy of the written designation when travelling from home or work. Additional changes affecting individuals include:
- Exception to stay home requirement allowing outdoor activity has been clarified to require physical activity or a “comparable activity for those with limited mobility”;
- An exception has been added to allow attendance at funerals of no more than ten people;
- An exception has been added to obtain necessary supplies or services for pets;
- Individuals having multiple residences cannot travel between residences after April 10, 2020;
- Individuals should limit the number of members of a household who leave the house for necessary errands to the extent safe and feasible;
- Travel for non-excepted activities, including to vacation rentals, is prohibited;
- Advertising or rental of short-term vacation property is prohibited other than to lodge health care professionals or volunteers responding to the COVID-19 crisis.
For more support and information relating to COVID-19, please visit the Kerr Russell COVID-19 Resource Center. If you have questions relating to employment or benefit matters, please contact a Kerr Russell attorney.
Liam K. Healy focuses his practice on helping clients maintain compliance with the myriad of state and federal tax laws and regulations that govern individuals and businesses. A particular focus of Liam’s practice is in the area of employee benefits and ERISA. Liam specializes in designing pension and executive compensation plans to benefit business owners and executives. His practice includes drafting and reviewing deferred compensation agreements, severance agreements and non-compete agreements, representing employers in multi-employer plan collection and withdrawal liability matters.
Mark C. Knoth chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.
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