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COVID-19 “Stay-Home” Executive Order: Determining Exemptions

Written by Alex Reuter on March 24, 2020 Category: Business Law & Transactions, Coronavirus, General Counsel and Advice, Small Businesses

Information on symptoms, mortality, risk factors, politics, and many other factors circulate the internet. State and local governments adapt to the changing situation at different paces, and you hear about the possibility of an executive order. As an employer, or an employee, you may find yourself wondering what that means.

As a general matter, the Michigan Constitution of 1963 vests in the Governor, the executive power of the state. Included within that power is the authority to issue executive orders that may be used to do any of the following: reorganize agencies within the executive branch of state government, reassign functions among executive branch agencies, create temporary agencies, establish an advisory body, commission, or task force, proclaim or end an emergency, or reduce expenditures authorized by appropriations. Once executed an executive order is considered by courts to be quasi-legislative and should be interpreted with the same approach used to interpret a statute. In other words, language used in an executive is given its plain meaning – or dictionary definitions. So, one should feel confident that pulling out the Webster to decipher the meaning of an executive order is a safe way to evaluate its application.

Almost two weeks after the first case of COVID-19 Governor Whitmer signed Executive Order 2020-21 (COVID-19) (described in some resources as Michigan’s “shelter-in-place” or “stay-home, stay-safe” order). While receiving significant attention, the Order was not the first executive order signed by the Governor to address this new coronavirus. On March 10, the Governor signed Executive Order 2020-4, declaring a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act.

The Emergency Management Act vests in the governor broad powers and duties to cope “with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Under the Emergency Powers of the Governor Act, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). With both Order 2020-4 and now Order 2020-21 (the “shelter-in-place” or “stay-home” Order) Governor Whitmer is exercising her authority to protect her fellow Michiganders under the aforementioned acts.

Specifically with respect to Order 2020-21, for at least three weeks the Governor has ordered “all individuals currently living within the State of Michigan…to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.” In addition to requiring six feet of “social distancing” when leaving the home, the Order also provides, “[n]o person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”

The Order delineates a number of arguably ambiguous exemptions to the “stay-home” mandate. First, the Order states that businesses and operations that employ “critical infrastructure workers” may continue in-person operations, subject to the following conditions: “businesses and operations must determine which of their workers are critical infrastructure workers and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm. Businesses and operations need not designate:

  1. Workers in health care and public health.
  1. Workers who perform necessary government activities, as described in section 6.
  1. Workers and volunteers described in section 9(d).

Notwithstanding the above exemptions, the Order directs companies to suspend all other in-person activities not necessary to sustain or protect life until normal operations resume. In other words, some portions of a company may be suspended in terms of in-person work, while at the same time another portion of the company may continue in-person operations if they involve critical infrastructure work.

Determining who constitutes a “critical infrastructure worker” the Order stats that such workers are those described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response. (available here). Such workers include some workers in each of the following sectors: (a)Health care and public health; (b) Law enforcement, public safety, and first responders; (c) Food and agriculture; (d) Energy; (e) Water and wastewater; (f) Transportation and logistics; (g) Public works; (h) Communications and information technology, including news media; (i) Other community-based government operations and essential functions; (j) Critical manufacturing; (k) Hazardous materials; (l) Financial services; (m) Chemical supply chains and safety; and (n) Defense industrial base.

In addition to the above, the Order also identifies the following as critical infrastructure workers:

  1. Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers as defined in this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of critical infrastructure workers.
  1. Workers at designated suppliers and distribution centers, as described below.
  1. A business or operation that employs critical infrastructure workers may designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of its critical infrastructure workers.
  2. Such suppliers, distribution centers, or service providers may designate workers as critical infrastructure workers onlyto the extent those workers are necessary to enable, support, or facilitate the work of the original operation’s or business’s critical infrastructure workers.
  3. Designated suppliers, distribution centers, and service providers may in turn designate additional suppliers, distribution centers, and service providers whose continued operation is necessary to enable, support, or facilitate the work of their critical infrastructure workers.
  4. Such additional suppliers, distribution centers, and service providers may designate workers as critical infrastructure workers onlyto the extent that those workers are necessary to enable, support, or facilitate the work of the critical infrastructure workers at the supplier, distribution center, or service provider that has designated them.
  5. Businesses, operations, suppliers, distribution centers, and service providers must make all designations in writing to the entities they are designating, whether by electronic message, public website, or other appropriate means. Such designations may be made orally until March 31, 2020 at 11:59 pm.
  6. Businesses, operations, suppliers, distribution centers, and service providers that abuse their designation authority shall be subject to sanctions to the fullest extent of the law.
  1. Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
  1. Workers and 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.
  1. Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.

Beyond critical infrastructure workers, the Order also makes exceptions under the following circumstances: (a) Individuals may leave their home or place of residence, and travel as necessary, including but not limited to: engaging in outdoor activity, including walking, hiking, running, cycling, or any other recreational activity consistent with remaining at least six feet from people from outside the individual’s household; performing their jobs as critical infrastructure workers after being so designated by their employers; conducting minimum basic operations, after being designated to perform such work by their employers; performing necessary government activities, as described in section 6 of the Order; performing tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets) – individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed); obtaining necessary services or supplies for themselves, their family or household members, and their vehicles. Individuals must secure such services or supplies via delivery to the maximum extent possible – however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences; caring for a family member or a family member’s pet in another household; caring for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons; visiting an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted; attending legal proceedings or hearings for essential or emergency purposes as ordered by a court; working or volunteering 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. Individuals are also permitted to travel to return to a home or place of residence from outside this state, to leave this state for a home or residence elsewhere, or to travel between two residences in this state. Finally, the Order expressly exempts those that need to leave their home as required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.

While this blog does not cover every exemption laid out in the Order, the circumstances of a particular situation will likely determine who is exempt and how the Order is applied to a given company. The attorneys at Dalton & Tomich are monitoring further executive developments and are available to answer additional questions you or your employer may have with respect to specific exemptions.

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