On April 9, Michigan Gov. Gretchen Whitmer signed Executive Order 2020-42, which reaffirms, clarifies and extends the duration of the measures contained in her previous “Stay Home, Stay Safe” Executive Order 2020-21 until April 30.
The previous order required all Michigan residents to stay at home in order to prevent the spread of COVID-19, and temporarily suspended in-person operations for noncritical infrastructure businesses through April 13.
The new order became effective at 11:59 p.m. on April 9 and significantly expands the prior order.
Permissible Activities for Individuals
Gov. Whitmer’s new order keeps in place the “Stay Home, Stay Safe” executive order’s requirement that all individuals are to remain at home or in their place of residence except for certain limited activities.
As such, under the new order, individuals are more restricted in their travel and are now even prohibited from traveling to vacation rentals and between two residences within the state.
Similar to the prior order, individuals, so long as they exercise social distancing practices (including remaining at least six feet from people from outside the individual’s home), may leave their home or place of residence to:
- Perform their jobs as critical infrastructure workers
- Seek necessary health and safety services (including medical and dental services)
- Obtain necessary services and supplies (including groceries and gasoline)
- Care for other family members (including minors and elderly people)
- Attend funerals, provided that no more than 10 people are present
- Attend essential or emergency legal proceedings as ordered by a court
- Work or volunteer at businesses that provide for disadvantaged or otherwise needy individuals
- Engage in outdoor physical activity, including walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity
- Return to a home or place of residence outside the state or to leave the state for a home or residence elsewhere
Additionally, the new order prohibits anyone from advertising or renting a short-term vacation property except as necessary to assist in housing a healthcare professional or volunteer aiding in the response to the COVID-19 crisis.
Critical Infrastructure Workers
The new order’s restrictions on work continue to be construed broadly to prohibit in-person work that is not necessary to sustain or protect life. In her public statements, Gov. Whitmer has made it clear that exceptions are to be construed narrowly.
The new order also specifically refuses to adopt expanded guidance on what constitutes critical infrastructure, according to the March 28 issuance by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (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 under the March 19 guidance included in the original order. 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.
Largely consistent with the previous order, this new order generally lists industries necessary to sustain or protect life as follows:
- Chemical supply chains and safety
- Child care workers serving children and dependents of critical infrastructure workers
- Communications and information technology, including news media
- Critical manufacturing
- Defense industrial base
- Energy
- Financial services
- Food and agriculture
- Hazardous materials
- Healthcare and public health
- Insurance industry workers unable to work remotely or via telephone
- Law enforcement, public safety and first responders
- Public works
- Transportation and logistics
- Water and wastewater
- Workers at designated suppliers and distribution centers
- Workers and volunteers for businesses that provide food, shelter and other life necessities for economically disadvantaged and other needy individuals
- Other community-based government operations and essential functions
It also expands what constitutes critical infrastructure workers by including the following categories:
- Workers at retail stores who sell groceries, medical supplies and products necessary to maintain the safety, sanitation and basic operation of residences, which includes convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers
- Workers at laundromats, coin laundries and dry cleaners
- Workers at hotel and motels (provided that the hotel or motel does not offer additional in-house amenities, such as gyms, pools, spas, dining, entertainment facilities or meeting rooms)
- Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, provided that showrooms remain closed to the public
In doing so, the new order places updated operational requirements on these businesses.
Additional Social Distancing Requirements for Businesses
The Governor’s new executive order places an additional requirement on businesses that continue in-person operations. Under the original order, businesses were required to adhere to sound social distancing practices and measures, including: 1) restricting the number of critical infrastructure workers to no more than those strictly necessary for the business to perform its critical infrastructure functions, 2) promoting remote work to the fullest extent possible, 3) keeping at least six feet from other employees or patrons to the maximum extent possible, 4) increasing standards of facility cleaning and disinfecting, 5) 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, and 6) 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 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.
Supplementary Restrictions on Businesses and Operations Open for In-Person Sales
The new order imposes new restrictions for stores that remain open for in-person sales, like groceries and convenience stores.
For stores that have less than 50,000 square feet of customer floor space, the total number of people permitted in the store (including employees) is limited to 25 percent of the total occupancy limits established by the state or local fire marshal.
For stores with more than 50,000 square feet, the order limits the number of customers permitted in the store to four people per 1,000 square feet. Large stores must also close areas that are dedicated to carpet or flooring, furniture, garden centers and plant nurseries, and paint. The order also requires these stores to 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.
Lastly, large stores must create at least two hours per week of dedicated shopping time for people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes and lung disease.
Regardless of the size of store, stores open for in-person sales must establish lines to regulate entry into the store so that applicable occupancy limits described above are maintained. In doing so, stores are required to provide markings to enable patrons to stand at least six feet apart from one another while waiting in line. Stores are also encourage to explore alternatives to lines, such as allowing customers to wait in their car for a text message or phone call, or establish curbside pickup.
To obtain more information, please contact the Barnes & Thornburg attorney with whom you work, or Keith Brodie at 616-742-3958 or keith.brodie@btlaw.com, Grant Pecor at 616-742-3911 or grant.pecor@btlaw.com, or Alex Petrik at 947-215-1322 or alex.petrik@btlaw.com.
You can also contact another member of the Labor and Employment Department:
Kenneth J. Yerkes, Chair
317-231-7513
John T.L. Koenig, Atlanta
404-264-4018
David B. Ritter, Chicago
312-214-4862
William A. Nolan, Columbus
614-628-1401
Mark S. Kittaka, Fort Wayne
260-425-4616
Frank T. Mamat, Detroit Metro
947-215-1320
Keith J. Brodie, Grand Rapids
616-742-3978
Peter A. Morse, Indianapolis
317-231-7794
Scott J. Witlin, Los Angeles
310-284-3777
Michael P. Palmer, South Bend and Elkhart
574-237-1139
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