Michigan Governor Gretchen Whitmer today issued Executive Order 2020-21, imposing a mandatory stay-at-home regime throughout Michigan, taking effect at midnight on Monday, March 23, and lasting through April 13 at 11:59 p.m. It is possible that the governor will extend the order beyond April 13 if she determines that the coronavirus emergency in the state at that time warrants such an extension. After the Executive Order was entered, the Governor’s Office issued further guidance in the form of responses to a series of FAQs, including clarifications of the definitions of critical infrastructure workers and the types of businesses that may remain open, among other topics. We may see additional clarifications in the coming days about the scope of activities allowed in this "rapidly evolving" situation.
General Stay-at-Home Requirement and Exceptions
Under the stay-at-home order, all individuals living in Michigan are required to stay at their place of residence, and all public and private gatherings of any number of people occurring among individuals who are not part of a single household are prohibited. There are several exceptions. Those exceptions include leaving one’s home to:
- Engage in recreational outdoor activity
- Perform a job as a “critical infrastructure worker” (described in greater detail below)
- Conduct “minimum business operations” (described in greater detail below) for a business or operation
- Perform necessary government activities
- Perform tasks necessary to one’s health and safety, and that of family or household members, including pets, such as securing medication or seeking urgent medical or dental care
- Obtain necessary services or supplies (e.g., groceries, take-out food, gasoline, medical supplies, and any other products needed to maintain the safety, sanitation, and basic operation of the home) for oneself, family or household members, and vehicles, although individuals are required to secure services or supplies by delivery to the maximum extent possible
- Care for a family member or family member’s pet in another household
- Care for minors, dependents, the elderly, persons with disabilities, or other vulnerable individuals
- Visit an individual at a health care or residential care facility
- Attend legal proceedings or hearings for essential or emergency purposes as ordered by a court
- Work or volunteer for businesses or operations providing food, shelter, or other necessities of life for economically disadvantaged or otherwise needy individuals, individuals needing assistance as a result of the coronavirus emergency, and people with disabilities
- Travel to return home from outside the state
- Travel to leave the state for a home elsewhere
- Travel between two residences within the state
- Travel as required by law enforcement or court order
Anyone leaving his or her home is required to adhere to CDC-recommended social distancing measures, including remaining at least six feet from people outside that individual’s household to the extent feasible under the circumstances.
Critical Infrastructure Workers
Businesses and operations (including government operations) that employ “critical infrastructure workers” may continue in-person operations. In-person activities not necessary to sustain or protect life must be suspended until normal operations resume.
“Critical infrastructure workers” are those workers who are necessary to sustain or protect life. Businesses and operations must determine which employees are critical infrastructure workers and inform them in writing of that designation (although these designations can be made orally until March 31 at 11:59 p.m.). The following workers are deemed to be critical infrastructure workers and no separate designation is needed for them:
- Health care and public health workers
- Workers performing necessary government activities (law enforcement, public safety, first responders, public transit, trash pick-up and disposal, elections management and oversight, operations necessary to enable transactions supporting the work of a business’s or operation’s critical infrastructure workers, maintenance of safe and sanitary public parks allowing for outdoor recreation, and other activities constituting minimum basic operations)
- Workers and volunteers for businesses or operations providing food, shelter, or other necessities of life for economically disadvantaged or otherwise needy individuals, individuals needing assistance as a result of the coronavirus emergency, and people with disabilities
For purposes of the order, “critical infrastructure workers” include those described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in guidance issued on March 19, 2020, including certain workers in the following sectors: (1) health care and public health, (2) law enforcement, public safety, and first responders, (3) food and agriculture, (4) energy, (5) water and wastewater, (6) transportation and logistics, (7) public works, (8) communications and information technology, including news media, (9) other community-based government operations and essential functions, (10) critical manufacturing, (11) hazardous materials, (12) financial services, (13) chemical supply chains and safety, and (14) the defense industrial base.
The following are also considered to be critical infrastructure workers:
- Child care workers serving the children or dependents of critical infrastructure workers
- Workers at “designated suppliers and distribution centers,” to be designated by businesses or operations employing critical infrastructure workers, the continued operation of which is necessary to enable, support, or facilitate the work of the designating businesses’ critical infrastructure workers
- Insurance industry workers whose work cannot be done telephonically or remotely
- Workers performing critical labor union functions, including the administration of health and welfare funds and the monitoring of the well-being and safety of union members who are critical infrastructure workers
Workers Necessary to Conduct a Business’s Minimum Basic Operations
In addition to critical infrastructure workers, workers who are necessary to conduct “minimum basic operations” of a business are also allowed to report to work. These workers are those whose in-person presence is needed to allow the business to maintain the value of its 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. Businesses must determine which of their employees are necessary for these purposes and inform them in writing of that requirement (although these designations can be made orally until March 31 at 11:59 p.m.).
Minimum Business Standards for In-Person Activities
Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons. At a minimum, those measures include:
- Restricting the number of workers present on business premises to only those strictly necessary to perform critical functions
- Promoting remote work to the fullest extent possible
- Keeping workers and patrons at least six feet from one another (including customers waiting in line)
- Increasing standards of facility cleaning and disinfection and adopting protocols to clean and disinfect in the event of a positive coronavirus case in the workplace
- Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with people known or suspected to have coronavirus
- Adopting any other social distancing practices and mitigation measures recommended by the CDC
Violations of the Order
Willful violations of the stay-at-home order are misdemeanors. Places of religious worship, when used for religious worship, are not subject to the penalty.
Guidance to Workers
It is important for businesses to inform and prepare their employees to comply with this order. One way that this can be done is by issuing a form letter or certificate for employees to carry as they travel to and from work, which they can present if stopped by law enforcement.
In addition, it may be helpful to advise employees on how to interact with law enforcement or other state or local government officials while in transit if the employees are stopped, for instance by having them follow these guidelines:
- Throughout the interaction with law enforcement or the government official, be courteous.
- Present documentation that the employee is a “critical infrastructure worker” or a worker required to conduct “minimum business operations” under the Governor’s order (e.g., a letter or certificate from the employer), and explain that he or she is in transit in relation to that business.
- If law enforcement rejects the letter, politely take the citation, ticket, or fine (if applicable), promptly notify human resources, and deliver the citation to the appropriate company personnel for handling.
Employees should know that the company will pay any and all fines associated with an employee being cited under the stay-at-home order, whether on the job or during their commute.