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 April 9, 2020, Michigan Governor Whitmer issued an Executive Order extending her April 3, 2020 Stay Home, Stay Safe Order through April 30, 2020, and including additional restrictions on retail businesses that remain open through the duration of the Order.  The Order takes effect on April 9, 2020 at 11:59 p.m.

The following are critical takeaways for employers regarding the Order:

Prior restrictions on businesses conducting in-person activities remain intact, though slightly modified.

As before, except for workers performing work “necessary to conduct minimum basic operations,” and “critical infrastructure workers,” businesses may not require workers to leave their homes to work.  For a complete discussion of these exceptions, please see Littler’s analysis.

The Order makes clear, however, that “critical infrastructure workers” are those workers described in the Director of U.S. Cybersecurity and Infrastructure Security Agency’s guidance of March 19, 2020, and does not adopt any subsequent guidance from the same agency.

Whereas the prior Executive Order permitted businesses to designate suppliers, distribution centers, or service providers as necessary to support the work of their critical infrastructure work, the new Executive Order has eschewed that designation requirement and provides the following requirements concerning suppliers, distribution centers, and service providers:

• Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
• Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
• Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.

While granting businesses this additional discretion, the new Order provides a stern warning: “Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.”

Businesses conducting in-person work must have a COVID-19 preparedness and response plan.

The Order requires businesses to develop a COVID-19 preparedness and response plan consistent with OSHA COVID-19 guidance. Such plans must be available at the company’s headquarters or the worksite. Businesses continuing to conduct in-person work should consult their policies to ensure that they have an appropriate COVID-19 preparedness and response plan in place. Even after the current Order expires, businesses not currently conducting in-person activities should be prepared to implement COVID-19 preparedness and response plans as employees return to work. Such plans should consider and address the level of risk associated with various worksites and job tasks, and should be prepared in consultation with qualified counsel.

In addition to restrictions set forth in Governor Whitmer’s original “Stay Home, Stay Safe” Order, stores open to the public must also regulate entry as follows:

• For stores with less than 50,000 square feet of customer floor space, the stores must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the state fire marshal or a local fire marshal.
• For stores with greater than 50,000 square feet, the stores must limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space. 

The amount of customer floor space must be calculated to exclude store areas that are closed. Such stores must also close areas of the store by cordoning them off, placing signs in aisles, posting prominent signs, removing goods, or other appropriate means that are dedicated to the following classes of goods: (a) carpet or flooring; (b) furniture; (c) garden centers and plant nurseries; or (d) paint. When calculating the amount of customer floor space for purposes of determining how many customers may be permitted in the store at a given time, stores over 50,000 square feet cannot include areas that are cordoned off as described above. Stores over 50,000 square feet must also create at least two hours per week of dedicated shopping time for vulnerable populations, which include: (a) individuals over age 60; (b) pregnant women; and (c) individuals with chronic conditions like heart disease, diabetes, and lung disease. 

By April 13, 2020, stores over 50,000 square feet must also refrain from advertising or promoting goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operations of residences.

The Order authorizes the Department of Health and Human Services to issue an emergency order varying the capacity limits described above as necessary to protect the public health.

The Order also encourages stores that remain open to explore:

• Alternatives to lines, including allowing customers to wait in their cars for a text message or phone call;
• Methods to enable social distancing;
• Accommodations for seniors and those with disabilities; and
• Establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.

The Order also prohibits the advertisement or rental of any short-term vacation properties except as necessary to assist in housing a health care professional or volunteer aiding in the response to the COVID-19 crisis.

In furtherance of this measure, the Order explicitly restricts travel to vacation rentals.

The Order also includes new exemptions for the following workers:

• Workers at laundromats, coin laundries, and dry cleaners.
• Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
• Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.

Enforcement plans remain unchanged.

Similar to Governor Whitmer’s original “Stay Home, Stay Safe” Order, this Order states 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.