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Nurseries and Garden Stores Permitted to Resume Activities With Conditions Under Executive Order 2020-59

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Allison M. Collins
Foster Swift Legal Update E-blast
April 24, 2020

Coronavirus Small BusinessesOn April 24, Governor Gretchen Whitmer issued Executive Order 2020-59 (“EO 2020-59”), which extends Michigan’s “stay-at-home” order until May 15, 2020. EO 2020-59 has loosened some restrictions on individuals and allows certain workers to resume business activities, so long as face coverings are provided for all in-person workers. It also requires businesses and operations with in-person workers to have a written COVID-19 preparedness plan. Significantly, the order allows garden stores and nurseries to resume operations, subject to certain conditions, a welcome reprieve from the prior iteration of the Governor’s order that closed these businesses.

Workers Can Return to Perform Resumed Activities

Section 10(c) of EO 2020-59 allows garden stores and nurseries to bring back workers for “resumed activities.” For purposes of the order, workers who perform resumed activities are defined as: “Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of this order.”

Under EO 2020-59, food and agriculture businesses and their workers continue to be considered “critical infrastructure,” and therefore are permitted to operate. In addition, the order allows businesses that do not sell necessary supplies to resume activities to process or fulfill remote orders of goods for delivery or curbside pick-up.

Businesses that sell essential goods may also sell non-essential goods if they sell such goods in their ordinary course of business. This means, for example, big box stores are no longer required to rope off their garden centers and plant nurseries.

Businesses must determine and identify which of their workers will perform resumed activities, and inform such workers of that designation. Businesses must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.

Social Distancing Practices and Measures

Pursuant to EO 2020-59, all businesses, including garden stores and nurseries, that open for in-person work must adhere to social distancing practices and measures, which include but are not limited to:

  • Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration (available here). Such plan must be available at company headquarters or the worksite.
  • Restricting the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
  • Promoting remote work to the fullest extent possible.
  • Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
  • Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
  • Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
  • Any other social distancing practices and mitigation measures recommended by the CDC.

In addition, garden stores and nurses, and other designated businesses, must also adhere to the following measures:

  • Barring gatherings of any size in which people cannot maintain six feet of distance from one another.
  • Limiting in-person interaction with clients and patrons to the maximum extent possible, and barring any such interaction in which people cannot maintain six feet of distance from one another.
  • Providing personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
  • Adopting protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment, and frequently touched surfaces.

Please contact your Foster Swift attorney if you have any questions regarding Executive Order 2020-59 or if your business has not yet adopted a COVID-19 Preparedness and Response Plan.