On April 24, 2020, Governor Whitmer issued Executive Order 2020-59 (“Order”). The Order is effective immediately with certain limited provisions effective on April 26. The Order continues through May 15, 2020 at 11:59 pm, unless modified. Executive Order 2020-60 was also issued and adds temporary safety measures for food-selling establishments and pharmacies
The Order extends Executive Order 2020-42 but allows for certain “resumed activities” and expanded individual activities. The Order also imposes new restrictions. The changes are as follow:
Businesses can resume certain activities
Businesses that employ “workers who perform resumed activities” can again operate. A seller of non-essential goods must provide goods via delivery or curbside pickup.
Effective April 26, 2020 at 11:59 pm, all businesses whose workers perform in-service work must provide non-medical grade face coverings for workers.
Businesses employing workers who perform resumed activities must provide notice to designated employees.
“Resumed activities” defined
The definition of resumed activities is clearly significant in that it controls which workers can return to work and what businesses can re-open on a restricted basis. They include workers for:
- Moving and storage operations;
- Maintenance and groundskeeper services for outdoor recreation facilities;
- Landscaping, lawn-care, garden stores and nurseries;
- Bicycle maintenance and repair;
- Processing of remote orders for goods to be picked up or delivered.
Resumed activity workers are subject to enhanced social distancing and preventive measures such as protocols for use of tools, required personal protective equipment and limited customer interaction. Gatherings of any size in which people cannot maintain six feet of distance from one another are prohibited.
A remote order catch-all
The “process or fulfill” category of resumed activities is the most significant in that any business employing such workers can operate so long as the tender of goods is made via delivery or curbside pick-up. It is foreseeable that many businesses will quickly adapt to this model for short term sales. Such businesses must otherwise remain closed to the public.
Child-care worker supporting resumed activities is now critical infrastructure worker
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. However, Executive Order 2020-42 and its predecessor provided an additional category of workers to be considered critical infrastructure workers, including child-care providers for children of critical infrastructure workers. This category has been expanded to include child-care providers of “resumed activity” workers.
The change ensures the availability of child-care for resuming workers. The change may have implications for paid leave rights under federal law. The Families First Coronavirus Response Act provides paid family leave to care for children if care is not available because of state or local quarantine orders. Even if schools remain closed, an employer asked to return to work who refuses for child-care reasons may not be covered under FFCRA. Child-care has been made available by the Order despite continued quarantine.
Other Changes Affecting Individuals
Additional changes affecting individuals include:
- Effective April 26 at 11:59, individuals are required to wear a mask or covering over the nose and mouth when in an enclosed public space;
- Exception to stay home requirement allowing outdoor activity has been changed from physical activity to recreational activity (e.g boating, golf).
- Individuals can receive certain specified non-essential medical procedures;
- Individuals having multiple residences can travel between residences and can move to a new residence;
- Individuals can pick-up non-essential items if received by curbside delivery;
- Individuals can attend addiction recovery meetings of not more than ten people.
The Elliot Larsen Civil Rights Act and other applicable state law serve to protect an individual wearing a mask pursuant to the Order. Violation of the Order is generally punishable as a misdemeanor except that the misdemeanor provision shall not apply to persons failing to wear a mask or to persons attending or sponsoring religious services.
Additional Protective Measures of Executive Order 2020-60
Governor Whitmer also issued another Executive Order 2020-60 (“Order 2020-60”) on April 24, 2020, imposing certain temporary safety measures for food-selling establishments and pharmacies as well as temporary relief from requirements applicable to the renewal of licenses for the food-service industry.
Order 2020-60 requires grocery stores and pharmacies to enact several measures, including:
- Creating at least 2 hours per week of dedicated shopping time for vulnerable populations;
- Provide access to hand washing facilities;
- Use best efforts to ensure checkout employees disinfect their hands between orders;
- Close self-serve prepared food stations and eliminate free samples/tasting stations;
- Close to the public for sufficient time each night to allow stores to be properly sanitized; and
- Abide by screening measures.
This Order 2020-60 also suspends strict compliance with certain provisions of the Food Law (92 PA 2000), extending licensing and registration expiration dates until 60 days after the end of the declared states of emergency and disaster.
The Order 2020-60 is effective as of April 24, 2020 and continues through May 22, 2020.
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.
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.
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.
Olivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.
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