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April 2020

Governor Whitmer’s New Stay-At-Home Order (Executive Order 2020-42) Has Legal Requirements for Business Owners to Fulfill Before Starting In-Person Operations

In addition to the Stay-at-Home provisions and exceptions in Governor Whitmer’s Executive Order 2020-42 which are outlined below, the Order requires business owners to address three legal requirements to conduct in-person operations. These are: (1) Preparation of a COVID-19 Preparedness and Response Plan consistent with OSHA guidance; (2) determine who, if any, qualify as critical infrastructure workers or for other exceptions, and (3) document in writing their decision. 

Considerations for preparing a COVID-19 Preparedness and Response Plan include: (1) assessing COVID-19 risks to employee health, including those relating to specific job functions and individual risk factors; and (2) identifying, documenting and implementing the appropriate controls. These will vary with the type of work performed and the location of the work. The Plan should be developed to assess and control COVID-19 related health risks for both “in-person” and “in-office” work. The COVID-19 specific employee training requirements are tailored as appropriate for the company.

The Order states that under MCL 30.405(3), willful violation of the Order is a misdemeanor, so deviating from the Order could result in serious consequences. The six-foot social distancing requirements remain in place. Other key provisions include:

1. General Stay-At-Home Requirement: All individuals living within the State of Michigan are ordered to stay at home or at their place of residence. Unless there is a stated exception in the Order, all other travel is prohibited.

a. The Order prohibits travel to second homes or vacation rentals, or advertising or renting a short-term vacation property except as necessary to assist in housing certain identified individuals helping in the response to the COVID-19 crisis. Per the FAQs, the Order also prohibits use of a motorboat, jet ski or similar watercraft (includes gas and electric motors), but non-motorized vessels are not prohibited.

b. Business Exceptions to Stay-At-Home Order (Non-exclusive list):

i. Those workers who are necessary to sustain or protect life 

1. Critical infrastructure workers outlined in federal guidance documents; 
2. Childcare workers under certain conditions;
3. Workers at suppliers, distribution centers, or service providers, including those further down the chain; 
4. Insurance industry workers if the work cannot be done remotely;
5. Workers and volunteers that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals;
6. Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers;
7. Workers at laundromats, coin laundries, and dry cleaners;
8. Certain workers at hotels and motels, with limited allowed operations;
9. Certain workers at motor vehicle dealerships; and 
10. Workers necessary to conduct minimum basic business operations, as defined in the Order.

ii. Retail store requirements: Include cordoning off certain areas, restrictions on occupancy, items being sold, square-footage restrictions, and others. 

c. Other exceptions (Non-Exclusive list):

i. Walking, hiking, running, cycling, kayaking, canoeing, or other similar activities.

ii. Travel (non-exclusive list):

1. To perform certain tasks necessary to protect the health and safety of family or household members (including pets);
2. To obtain certain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles, using delivery services to the extent possible;
3. To care for a family member or their pet in another household, and certain other disadvantaged or at-risk individuals; 
4. To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted; 
5. To work or volunteer for businesses or operations (secular and non-secular) that provide food, shelter, and other necessities of life for the economically and otherwise disadvantaged, and people with disabilities, among others; 
6. To attend a funeral attended by no more than 10 people. 

FBMJ attorneys have experience with preparing the required COVID-19 Preparedness and Response Plans and guiding clients through the process of determining and documenting critical infrastructure workers and preparing Infectious Disease documentation.

For additional information on anything in this article, including assistance in documenting Executive Order 2020-42 compliance for in-person business operations, you may contact the attorneys below:

Rich Baron 
Ben Fruchey
Nick Tatro