PUBLISHED 3/25/2020

Prepared by Michigan Community Resources with pro bono assistance from Dykema attorneys Courtney Kissel, Ann Fillingham, and Leonard Wolfe

On March 23, 2020, in order to curb the spread of COVID-19 in Michigan, Governor Whitmer issued Executive Order 2020-21 (“EO 2020-21”), which orders all Michigan residents to stay at home or in their place of residence unless exempted until April 13, 2020, at 11:59 p.m. To this end, EO 2020-21 also orders that no person or entity may conduct a business or conduct operations that require workers to leave their homes or residences unless that entity qualifies for an exemption.

Governor Whitmer’s issuance of EO 2020-21 poses several questions, such as what activities are prohibited, how long it will be in effect, what organizations and businesses are exempted from its restrictions, and much more. 

What activities are prohibited?

All public and private gatherings of any number of people outside of a single household are prohibited. Individuals may leave their homes for certain, limited reasons. Permissible reasons include: to leave as necessary for their health and safety (e.g., to seek medical or dental care), to obtain necessary supplies and services, to engage in outdoor activity, to work as a critical infrastructure worker, to conduct minimum basic operations (described below), to care for family members or vulnerable persons, to attend legal proceedings, or to work or volunteer for certain businesses or operations. When outside their homes, individuals must remain six or more feet from individuals other than household members.

What nonprofit organizations and businesses must suspend their in-person operations?

Unless specifically exempted, all organizations and businesses that require workers to leave their homes must cease in-person operations unless those workers who are required to leave their homes are necessary to sustain or protect life or to conduct minimum basic operations.

EO 2020-21 states that workers necessary to conduct minimum basic operations are those whose 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 (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.”

Organizations and businesses must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation in writing (email, public website, or other means are acceptable). These designations may be done verbally until March 31, 2020, at 11:59 p.m.

Organizations should also consider designating back-up personnel to perform such tasks in the event the primary contact is indisposed and develop a written plan informing all for a system to insure it is clearly designated and back-up systems are in place.

What nonprofit organizations and businesses are carved out from the in-person operational restrictions?

“Workers or volunteers for businesses or operations (including both and religious and secular nonprofit organizations) that provide 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 may continue in-person operations.”

These workers and volunteers are considered critical infrastructure workers. Even for these organizations, however, any in-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume.

Other categories of critical infrastructure workers include those in the following fields:

• Health care and public health;
• Law enforcement, public safety, and first responders;
• Food and agriculture;
• Energy;
• Water, wastewater, and other public works;
• Transportation and logistics;
• Media and other communications and information technology;
• Critical manufacturing;
• Hazardous materials;
• Financial services;
• Chemical supply chains and safety;
• Defense industrial base;
• Certain child care workers;
• Designated suppliers and distributions centers (see below);
• Insurance industry (to the extent their work cannot be done by telephone or remotely); and
• Certain critical labor union functions.

For additional information on critical infrastructure workers, see the U.S. Department of Homeland Security’s Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.

If your organization is allowed to continue in-person operations, what else do you need to do?

• Designate your “critical infrastructure workers” and back-ups and inform them as required.
• Restrict the number of workers or volunteers on premises to those strictly necessary.
• Promote remote work to the extent possible.
• Enforce social distancing to the extent possible (e.g., keep everyone at least six feet away from each other).
• Increase cleaning standards and disinfecting protocols and adopt protocols for cleaning and disinfecting in the event of a positive COVID-19 case in the workplace.
• Adopt policies to prevent workers from entering your premises if they display any respiratory symptoms or have had contact with someone who is known or suspected to have COVID-19.
• Adopt any other social distancing practices and mitigation measures recommended by the Centers for Disease Control and Prevention.

For additional reference:
NonprofitHR Coronavirus Information Portal
MCR Legal Alert: COVID-19 and the Nonprofit Workplace

How long are these restrictions in place?

EO 2020-21 is effective March 24, 2020, at 12:01 a.m. until April 13, 2020, at 11:59 p.m. Governor Whitmer will continue to evaluate the need for this order prior to its expiration and may modify it as needed. A full copy of EO 2020-21 can be found here.

CONTACT US:
If you have any questions about this Executive Order and how it affects your organization, please contact the MCR Legal Team at 313.962.3171 ext. 101 or legal@mi-community.org.

As part of our service to our clients, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Your comments are always welcome.

Please note: These resources have been prepared by Michigan Community Resources with assistance from pro bono attorneys throughout Michigan as information only and does not constitute legal advice.  This information is not intended to create and receipt of the information does not constitute a client-lawyer relationship.