NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

On March 23, 2020, Michigan Governor Gretchen Whitmer issued an Executive Order requiring all individuals currently living in the State of Michigan to stay home or at their place of residence, and prohibiting private gatherings of any number of people not part of a single household.  The Order takes effect on March 24, 2020 at 12:01 a.m., and continues through April 13, 2020 at 11:59 p.m.

The following are critical takeaways for employers regarding the Order:

The Order directs all non-“critical infrastructure workers” in Michigan to cease all activities other than “minimum basic operations.”

Covered businesses under this Order include all entities not specifically exempted under the Order. The directive does not prohibit work-from-home operations. The Order specifically permits businesses to continue operations that do not require workers to leave their homes.

All Michigan businesses can continue “minimum basic operations,” which include:

• Activities that are strictly necessary to allow the business to maintain the value of inventory and equipment;
• Caring for animals;
• Ensuring security;
• Processing transactions (including payroll and employee benefits); and
• Facilitating the ability of other workers to work remotely.

Businesses maintaining any in-person activities must adopt social distancing practices to protect workers and patrons, which include:

• Restricting the number of workers on the premises to those strictly necessary to perform critical infrastructure functions;
• Promoting remote work to the fullest extent possible;
• Keeping worker and patrons at least six feet apart, including patrons standing in line;
• Increasing standards of cleaning and disinfection;
• 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 someone who is known or suspected to have COVID-19; and
• Any other social distancing practices recommended by the CDC.

Businesses that employ “critical infrastructure workers” are exempt from this Order. 

Critical infrastructure workers include workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency (guidance available here). These individuals work in the following industries:

• 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; and
• Defense industrial base.

Critical infrastructure workers also include workers at designated suppliers and distribution centers whose continued operation is necessary to enable, support, or facilitate the work of critical infrastructure workers. Businesses can designate those suppliers, distribution centers, or service providers whose continued operation is essential to the work of their critical infrastructure workers. Such suppliers, distribution centers, or service providers, in turn, may designate their own workers as critical infrastructure workers only to the extent those workers are necessary to enable, support, or facilitate the work of the original business that employs critical infrastructure workers.

The Order explains that these suppliers, distribution centers, or service providers may designate additional suppliers, distribution centers, and service providers whose continued operation is necessary to their own operations.  These entities may also designate critical infrastructure workers only to the extent those workers are necessary.

Businesses, suppliers, distribution centers, and service providers must make all the above-mentioned designations in writing (including electronically, by public website, or other appropriate means) to the entities they are designating.  Such designations may also be made orally until March 31, 2020 at 11:59 p.m.

Entities that abuse their designation authority shall be subject to sanctions to the fullest extent of the law.

The Order exempts the following workers:

• Child care workers (licensed or not), but only to the extent necessary to serve children of critical infrastructure workers;
• Workers in the insurance industry, but only to the extent their work cannot be performed remotely;
• Workers and volunteers for businesses (including religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged individuals, people with disabilities, or others who need assistance; and
• Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the safety of union members who are critical infrastructure workers, provided that all work should be done remotely when possible.

The Order prohibits all in-person government activities that are not necessary to sustain or protect life, or to support businesses necessary to sustain or protect life. 

Necessary government activities exempt from this Order include:

• Law enforcement;
• Public safety;
• First responders;
• Public transit;
• Trash pick-up and disposal;
• Overseeing elections;
• Maintenance of safe and sanitary public parks so as to allow for outdoor recreation;
• Workers performing “minimum basic operations” (discussed above) which are not required to be designated; and
• Workers whose duties are necessary to enable transaction that support businesses’ critical infrastructure workers.

Businesses that employ critical infrastructure workers must determine which workers are critical infrastructure workers and inform those workers of their designation in writing (including electronically, by public website, or other appropriate means).

Businesses can communicate such designation orally until March 31, 2020 at 11:59 p.m. This requirement to identify “critical infrastructure workers” does not apply to: (1) workers in health care and public health; (2) workers who perform necessary government functions (see number 5 above); or (3) Workers and volunteers for businesses (including religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged individuals, people with disabilities, or others who need assistance.

Enforcement plans remain unclear. 

The Order states, however, that any willful violation of the Order is a misdemeanor offense pursuant to the Emergency Powers of Governor, MCL 10.33 and Emergency Management Act, MCL 30.405.