On March 23, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21 (the “Order”) in response to the COVID-19 pandemic. The Order demands residents to remain at home “to the maximum extent feasible” and prohibits in-person work that “is not necessary to sustain or protect life.” The Order takes effect on March 24, 2020 at 12:01 a.m. and continues through April 13, 2020 at 11:59 p.m. Notably, a willful violation of Executive Order 2020-21 is a criminal misdemeanor. NOTE: The Governor’s office was inundated with questions immediately after issuing the Order, and we expect the Governor’s office to revise the Order or at least provide further guidance in the near future.
Pursuant to the Order, no person or entity shall operate a business that requires workers to leave their homes except to the extent that those workers are necessary (i) to conduct minimum basic operations or (ii) to sustain or protect life.
Workers Necessary to Conduct Minimum Basic Operations
According to the Order, workers who are necessary to conduct “minimum basic operations” are workers whose in-person presence is strictly necessary to allow the business to:
While these workers may leave their homes to operate the business to conduct minimum basic operations, they must adhere to social distancing measures recommended by the Center for Disease Control (CDC), including remaining at least six feet away from people outside of the individual’s household.
Once a business has determined which of its workers are necessary to conduct minimum basic operations, the business must inform those workers of that designation in writing by electronic message, public website or other appropriate means. These designations may only be made orally until March 31, 2020 at 11:59 p.m.
Workers Necessary to Sustain or Protect Life
A. Definition of Critical Infrastructure Workers
For purposes of the Order, workers who are necessary to sustain or protect life are defined as “Critical Infrastructure Workers.” When defining “Critical Infrastructure Workers,” the Order relies on the United States Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency Director’s Guidance, which is available here. According to the Order, Critical Infrastructure Workers include workers in each of the following sectors:
The Order also designates the following workers as Critical Infrastructure Workers:
The Order also allows businesses who employ Critical Infrastructure Workers to designate additional suppliers, distribution centers and service providers (“Additional Entities”) whose operation is necessary to allow the business to maintain its work. Such Additional Entities may designate its workers as Critical Infrastructure Workers if those workers are necessary to support the designating business. The Additional Entities may in turn designate additional suppliers, distribution centers and service providers whose operation is necessary to allow the Additional Entities to maintain their work.
Businesses, suppliers, distribution centers and service providers must make all designations in writing to the entities they are designating, whether by electronic message, public website or other appropriate means. These designations may only be made orally until March 31, 2020 at 11:59 p.m.
B. Limits on Businesses Employing Critical Infrastructure Workers
Businesses that employ Critical Infrastructure Workers may continue in-person operations, albeit subject to a number of conditions. Businesses maintaining in-person activities must:
We have organized a cross-disciplinary legal team to help answer questions regarding the Order. If you have any questions or concerns related to the Order, please reach out to Troy Cumings, Matthew Johnson, Michael Brady or your Warner client manager.
