As everybody is well-aware by now, on Monday, the Governor of Michigan issued an executive order, Executive Order 2020-21 (COVID-19), requiring that Michigan residents and most workers stay at home, in an effort to slow the spread of COVID-19 in the State.
While the implications for our personal lives is pretty well-defined, the impact that the Order has on your business many prompt many questions. We try to answer some of the most basic ones here.
As an initial matter, the Executive Order specifically provides that:
No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.
. . . .
Businesses and operations that employ critical infrastructure workers may continue in-person operations, subject to [certain] conditions[.]
The Order later clarifies that:
For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response . . . . Such workers include some workers in each of the following sectors:
- Health care and public health.
- Law enforcement, public safety, and first responders.
- Food and agriculture.
- Energy.
- Water and wastewater.
- Transportation and logistics.
- Public works.
- Communications and information technology, including news media.
- Other community-based government operations and essential functions.
- Critical manufacturing.
- Hazardous materials.
- Financial services.
- Chemical supply chains and safety.
- Defense industrial base.
The Order also specifies that critical infrastructure workers also include certain child-care workers, some workers at “designated suppliers and distribution centers,” and a few other categories of identified workers.
Obviously, many, if not most, businesses in Michigan will not fall into one of these categories. So the question is: do you have to shut your doors completely? On the one hand, the Order requires that businesses not employing “critical infrastructure workers” cannot require workers to leave their homes. On the other hand, the Order does allow, for the purpose of ensuring the functioning of “minimum basic operations,” certain staff to work in-person. Notably, these minimum basic operations include, among other things, processing transactions (including payroll and employee benefits) and facilitating the ability of others to work remotely.
Businesses must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Further, they must make those designations in writing, by: (1) electronic message; (2) public website; or (3) other appropriate means. The designations, however, may be made orally until March 31, 2020 at 11:59 pm.
While this situation is clearly without precedent, meaning there is little in the way of guidance to look to, the bottom line is that you are allowed to have a very limited in-person presence at your business in order to ensure its continued basic operations and, perhaps most necessarily, to ensure that others can work remotely, as the Order requires.
Please contact the attorneys of Demorest Law Firm for assistance with these issues and stay tuned for further developments.
