As expected, on April 9, 2020, Governor Gretchen Whitmer issued new Executive Order 2020-42 (“Revised Order”), which rescinded the prior Stay Home, Stay Safe Executive Order issued on March 23, 2020 (“Previous Order”). The Revised Order takes effect on April 9, 2020 at 11:59PM and continues through April 30, 2020 at 11:59PM.
The Revised Order further limits travel, references certain guidance as to defining critical infrastructure workers, places additional requirements on businesses remaining open including limiting goods that can be sold by retailers and implementing social distancing practices, and incorporates guidance issued under the Previous Order.
Critical Infrastructure Workers
When defining “critical infrastructure workers,” the Previous Order relied on the United States Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency Director’s (CISA) Guidance. The Revised Order clearly adopts CISA’s March 19, 2020 Guidance, found here, and excludes any subsequent guidance document released by CISA.
The Revised Order integrates additional guidance issued under the Previous Order and specifically states critical infrastructure workers include individuals 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. The Revised Order also now expressly states that critical infrastructure workers include repair stores and retail stores that sell, among other things, auto supplies.
Requirements for Continued Operations
The Revised Order requires businesses, operations and government agencies that continue in-person work to adhere to social distancing practices and measures. Specifically, businesses, operations and government agencies are required to:
- Develop 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, available here. The plan must be available at company headquarters or the worksite.
- Restrict the number of workers present on premises to no more than is strictly necessary to perform the business’s, operation’s or government agency’s critical infrastructure functions or its minimum basic operations.
Any store that remains open for in-person sales must:
- Establish lines to regulate entry and make markings enabling patrons to stand at least six feet apart from one another while waiting;
- Explore alternatives to lines, including 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; and
- Consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
Stores that are less than 50,000 square feet of customer floor space must 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. Stores with more than 50,000 square feet must:
- Limit the number of customers in the store at one time (excluding employees) to four 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;
- 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 carpet or flooring, furniture, garden centers and plant nurseries, and paint;
- 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; and
- 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.
Individual Travel
Individuals may no longer travel between two residences in the state of Michigan after April 10, 2020. Under the Revised Order, all travel to vacation rentals is prohibited. The Revised Order also allows individuals to leave their home to drop off a vehicle that was sold remotely. Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
Funeral Attendance
The Revised Order allows individuals to leave their homes to attend a funeral, provided that no more than 10 people are in attendance at the funeral.
Vacation Rentals
Under the Revised Order, no one may advertise or rent a short-term vacation property except as necessary to assist in housing a health care professional or volunteer aiding in the response to COVID-19.
CONCLUSION
Warner has organized a cross-disciplinary legal team to help answer questions regarding these issues. If you have any questions or concerns related to the Previous Order or Revised Order, please reach out to your Warner client manager or Michael Brady, Troy Cumings, Amanda Fielder or Matt Johnson.
