Governor Whitmer Orders Temporary Closure of All Businesses That Are Not Necessary to Sustain or Protect Life

On March 23, 2020, Michigan Governor Whitmer issued the “Stay Home, Stay Safe” Executive Order, ordering all Michigan businesses or operations to temporarily suspend in-person operations that are not necessary to sustain or protect life in order to suppress the spread of COVID-19 in Michigan.

The Order requires that all businesses or operations that are not necessary to sustain or protect life are prohibited from in-person work as of 12:00 a.m. on March 24, 2020 and continues until 11:59 p.m. on April 13, 2020.

Workers conducting minimum basic operations. The Order provides that workers who are needed to conduct minimum basic operations will be allowed to work in-person. The Order defines minimum basic operations as those operations necessary to allow the business to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (i.e., payroll and employee benefits), or facilitate the ability of other workers to work remotely.

Critical Infrastructure Workers. The Order provides that businesses and operations that employ critical infrastructure workers may continue in-person operations. The Order identified critical infrastructure workers as including workers from 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;
• Communication and information technology, including news media;
• Other community-based government operations and essential operations, including educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions, if operating under the social distances practices;
• Critical manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base;
• Hazardous materials which may include: workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, workers at laboratories processing test kits, workers who support hazardous materials response and cleanup, and workers who maintain digital systems infrastructure supporting hazardous materials management operations;
• Financial services;
• Chemical supply chains and safety; and
• Defense industry base.

The Executive Order also identified critical infrastructure workers as including the following workers:

• Childcare workers who serve children or dependents of critical infrastructure workers;
• Workers at designated suppliers and distribution centers;
• Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely;
• Workers or volunteers for businesses or operations that provide food, shelter, or other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance, and people with disability; and
• Workers who perform critical labor union functions which cannot be performed remotely or by telephone.

In-Person Government Activities. In-person government activities at the state, county, or local level which are not necessary to sustain or protect life, or support businesses and operations that are necessary to sustain or protect life, are suspended pursuant to the Executive Order. Examples of necessary governmental activities may include, but are not limited to the following:

• Activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders;
• Public transit;
• Trash pick-up and disposal;
• Activities necessary to manage and oversee elections;
• Operations necessary to enable transactions that support the work of a business’ or operation’s critical infrastructure workers; and
• The maintenance of safe and sanitary public parks

The above in-person governmental activities must be performed in accordance with the social distancing measures as recommended by the Centers for Disease Control and Prevention to protect workers and residents.

Designation Notice. Businesses are required to determine which of their workers are necessary to conduct minimum business operations and notify such workers of that designation in writing by March 30, 2020.

There is no designation notice requirement for health care and public health workers, workers who perform necessary government activities, as described above, and workers and volunteers who provide food, shelter, or other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance, and people with disabilities.

There is nothing in this Executive Order which prohibits non-critical infrastructure workers who are able to telework to continue working remotely.

A willful violation of the order is a misdemeanor.

The Executive Order provides that Governor Whitmer will evaluate the continuing need for this order and whether to maintain, intensify, or relax its restrictions prior to its expiration on April 13, 2020.

Given that events are rapidly evolving, we will continue to monitor federal and state legislation and regulations, as well as Executive Orders related to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.