Michigan Gov. Gretchen Whitmer signed Executive Order 2020-42 on April 9 to reaffirm, clarify, and extend the duration of the measures contained in her previous “Stay Home, Stay Safe” Executive Order 2020-21 until April 30. It also identifies additional critical infrastructure businesses and business activities that are allowed to continue minimum basic operations, including aviation and transportation entities.
The previous order required all Michigan residents to stay at home and temporarily suspended in-person operations for noncritical infrastructure businesses through April 13, in order to prevent the spread of COVID-19. The new order became effective at 11:59 p.m. on April 9 and significantly expands the prior order.
Critical Infrastructure Workers: Transportation and Logistics Businesses, including those in Aviation
The new order, just as in the original order, affects certain critical transportation and logistics entities. This revised order again incorporates by reference the March 19 guidance from the U.S. Cybersecurity and Infrastructure Security Agency (CISA), excluding any subsequent guidance document released by the CISA.
The new order specifically refuses to adopt expanded guidance on what constitutes critical infrastructure, according to the March 28 issuance by the CISA, which means some individuals recognized as critical infrastructure workers at the federal level are not recognized in Michigan. For example, farm auction workers, pest control workers, chemical storage workers, mine workers, and certain warehouse workers are less likely to be included. Therefore, Michigan employers are not able to rely on the expanded descriptions of critical infrastructure that appeared in that new guidance, but instead must still rely upon the prior CISA guidance in making critical infrastructure determinations.
The applicable March 19 CISA guidance specifically includes the following aviation-related workers:
- Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, and workers that maintain and inspect infrastructure (including those that require cross-border travel)
- Employees of firms providing services that enable logistics operations
- Employees who repair and maintain aircraft, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers
- Air transportation employees, including air traffic controllers, ramp personnel, aviation security, and aviation management
- Workers who support the maintenance and operation of cargo by air transportation, including flight crews, maintenance, airport operations, and other on- and off- airport facilities workers
Further guidance from the CISA includes in the definition of “Transportation Systems Sector” the “Aviation” subsector which includes commercial and recreation aircraft (manned and unmanned), air traffic control systems, and about 19,700 airports, heliports, landing strips, and sea plane bases. In addition, the aviation mode includes a wide-variety of support services, such as aircraft repair stations, fueling facilities, navigation aids, and flight schools.
While the executive order includes these as aviation and transportation workers and activities that are allowed to continue, it is important to remember that the order limits the activities of the critical workforce and exempted businesses by allowing only those critical infrastructure workers and activities necessary to protect and sustain life.
Permissible Activities and New Requirements for Critical Infrastructure Workers, Including Aviation
Businesses that are permitted under the new executive order to continue in-person operations may do so subject to additional requirements, beyond the following:
- Restricting the number of critical infrastructure workers to no more than those strictly necessary to perform its critical infrastructure functions
- Promoting remote work to the fullest extent possible
- Keeping at least six feet from other employees or patrons to the maximum extent possible
- Increasing standards of facility cleaning and disinfecting
- Adopting policies to prevent workers from entering the premises if they display symptoms of COVID-19 or have recently come into contact with someone who is known or suspected to have COVID-19
- Implementing protocols to clean and disinfect in the event a critical infrastructure worker tests positive for COVID-19
In addition to these prior mandates, the new order requires employers, aviation among them, to develop a COVID-19 preparedness and response plan, consistent with the recommendations in Guidance on Preparing Workplaces for COVID-19 developed by the Occupational Health and Safety Administration.
These employers are still required to designate in writing – via letter, email, public website or other appropriate means – all employees they deem critical in supporting the noted critical infrastructure industries.
To obtain more information, please contact the Barnes & Thornburg attorney with whom you work, or Mary E. Comazzi at 947-215-1319 or mary.comazzi@btlaw.com, Todd A. Dixon at 616-742-3959 or todd.dixon@btlaw.com, or Clifford G. Maine at 616-742-3944 or clifford.maine@btlaw.com.
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