Plain English/What You Need to Know - Michigan EO 2020-21 on Suspension of Activities for Manufacturers

This article has been updated with new information as of March 26, 2020.

The last few weeks have been unprecedented in our lifetimes not only for individuals, but for businesses as well due to the COVID-19 epidemic. From a business perspective (please note, this does not include health care, public health or government workers, or food and shelter volunteers, or unions, etc), here is a brief summary of Michigan EO 2020-21 and how it works. We expect there will be further clarifications from the state of Michigan to address particular situations and to clarify the Executive Order. For example, see FAQ on EO 2020-21. The important thing to remember is the aim of EO 2020-21 is to prohibit work that is not necessary to sustain or protect life in Michigan.

Only critical infrastructure workers (and certain workers strictly necessary to conduct minimum basic operations for non critical infrastructure industry businesses- a very narrow category) can leave their homes for work. Workers of businesses of any kind that are able to work remotely can do so.  

1. Even if you are not in a critical infrastructure industry, the workers whose in-person presence is strictly necessary to allow your business to work remotely, process payroll and transactions, provide security or maintain inventory can be designated in writing as workers required to conduct minimum basic operations by March 31 at midnight. Until then you can orally designate them, thereafter they have to be designated in writing. Otherwise, in-person operations may not continue (but see paragraph 5 below).
    
2. If your business employs critical infrastructure workers, you can have in-person operations but must designate using the March 19 federal guidance (see US Department of Homeland Security March 19, 2020 Memorandum) which particular individual workers are critical infrastructure workers and inform them in writing of such designation by March 31 at midnight. They can be orally designated until then.
    
3. Those in-person critical infrastructure workers must adopt social distancing. You must have no more people present than strictly necessary to perform the critical infrastructure functions, your business should increase standards of facility cleaning and disinfecting, and be promoting remote work to the fullest extent possible. You have to keep workers at least six feet apart. You have to “adopt policies to prevent workers from entering the premises if they display symptoms or have been in contact with a person known or suspected to have COVID-19”.
    
4. If your business employs critical infrastructure workers as defined by the March 19 federal guidance and Section 4 of the Executive Order, your business can designate suppliers or service providers whose continuous operation is necessary to enable, support or facilitate your critical infrastructure workers. Those designated businesses can then designate their own workers as critical infrastructure workers to the extent those specific workers are necessary for that original business. Those first level suppliers can then designate second level suppliers who in turn designate their own second level critical infrastructure workers only to the extent they are necessary to support the workers at the supplier or service provider that has designated them. All the designations must be in writing by March 31 at midnight and until then can be oral. If you don’t make these designations you can risk not having the suppliers or service providers you need in place to enable, support, or facilitate the work of your critical infrastructure workers.
    
5. If your business is not in a critical infrastructure industry, you might still have critical infrastructure workers because you are designated by a customer with critical infrastructure workers as a supplier or service provider whose continued operation is necessary to enable, support or facilitate the work of your customer’s critical infrastructure workers. In that case you would designate your workers necessary to provide that support to that customer as critical infrastructure workers. 

Anyone abusing their designated authority “will be subject to sanctions to the fullest extent of the law.” Businesses should also have procedures and security in place to ensure non-critical infrastructure workers (or those whose presence is strictly necessary to conduct minimum basic operations - which is a very narrow category) do not enter the workplace to avoid inadvertent liability.

The Executive Order is required to be construed broadly to prohibit in-person work that is not authorized in the Order. Here are examples from the FAQ on EO 2020-21 regarding the broad interpretation:

• Q: Is bottle return an essential service?
  • A: Although bottle return services are often located within grocery and convenience stores, they are not considered critical infrastructure. There will be no change in the deposit collected at the time of purchase during this temporary suspension of bottle return services.
• Q: Are real estate agents, brokers, and real estate service employees considered critical infrastructure workers under 2020-21?
  • A: These workers do not constitute “critical infrastructure workers” and thus may not leave their homes for work unless, under section 9(d) of the order, they are “provid[ing] food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.” This is a tightly circumscribed category that captures only work that must be carried out in person and is absolutely necessary to assist those with a genuine and emergent need, such as an immediate lack of shelter. All work must be carried out remotely to the greatest extent possible.

For questions related to this communication, please contact:

Foster Swift's lawyers are ready to help with these urgent and novel questions related to the coronavirus. Visit our Coronavirus Task Force page for more information. If you have questions, we encourage you to contact your Foster Swift attorney or one of our coronavirus coordinators as listed below:

• Mid-Michigan & Southeast Michigan - Matthew Fedor...248.785.4734...mfedor@fosterswift.com
• West & Northern Michigan - Laura Genovich...616.726.2238...lgenovich@fosterswift.com