Understanding Governor Whitmer’s Executive Order for Michigan

Today, Governor Whitmer issued Executive Order 2020-21, which takes effect tomorrow, March 24, 2020, at 12:01 a.m. The Executive Order, which is to be “construed broadly to prohibit in-person work that is not necessary to sustain or protect life,” mandates the following:

All businesses must suspend operations if they require workers to leave their homes to operate, and all individuals living in the State of Michigan are to stay at home.

Two General Exceptions for the Executive Order

1) Workers necessary to conduct “minimum basic operations.” A worker is necessary to conduct minimum basic operations if the worker’s in-person presence “is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions… or facilitate the ability of other workers to work remotely.”

2) “Critical Infrastructure Workers,” but those who are absolutely necessary. A worker is a “critical infrastructure worker” if he or she is described in the Cybersecurity and Infrastructure Security Agency’s (“CISA”) COVID-19 guidance. CISA’s guidance identifies the following 16 critical infrastructure sectors whose workers are essential to the nation’s public health and safety:

• Chemical Sector
• Commercial Facilities Sector
• Communications Sector
• Critical Manufacturing Sector
• Dams Sector
• Defense Industrial Base Sector
• Emergency Services Sector
• Energy Sector
• Financial Services Sector
• Food and Agriculture Sector
• Government Facilities Sector
• Healthcare and Public Health Sector
• Information Technology Sector
• Nuclear Reactors, Materials, and Waste Sector
• Transportation Systems Sector
• Water and Wastewater Systems Sector

CISA describes in some detail the workers within these sectors that are “critical infrastructure workers.” This guidance and the list can be found here.

In addition to CISA’s guidance, the Executive Order deems the following workers as critical infrastructure workers:

• Child care workers who serve critical infrastructure workers
• Workers at suppliers, distribution centers, or service providers that are necessary to enable, support, or facilitate the work of critical infrastructure workers
• Workers in the insurance industry that cannot work remotely
• Workers for a business or operation that provides necessities of life to those who are economically disadvantaged, harmed by COVID-19, or disabled
• Workers who perform critical functions for a labor union, such as monitoring the safety of critical infrastructure workers, although these workers are encouraged to work remotely

A business may designate another business, such as a supplier, distribution center, or service provider, as being necessary to facilitate the work of the business’s critical infrastructure workers. In such a case, the supplier, distribution center, or service provider may designate certain workers as “critical infrastructure workers;” however, it is highly recommended that such suppliers, distribution centers, or service providers be mindful of the Executive Order’s guidance that they should only designate those workers if such workers are necessary to enable the functions of the original “critical infrastructure workers.”

If a business employs a “necessary” worker, it must designate them as such and inform them of this designation electronically or in writing (or, until March 31^st, verbally). It is our recommendation that businesses electronically notify workers that they have been designated “necessary” as soon as possible.

Certain limitations govern businesses that continue in-person operations because they employ critical infrastructure workers. They must practice social distancing as described in the Executive Order, including having a plan in place for what to do in the event an in-person worker tests positive for COVID-19 and implementing policies to prevent in-person workers from entering the premises if they display symptoms or were near a person who is known or suspected to have COVID-19.

Rhoades McKee is continually monitoring legal developments related to COVID-19 and will keep you updated. In the meantime, should you have any questions about this Executive Order or other issues, please do not hesitate to contact a member of the Rhoades McKee COVID-19 Legal Response Team.