On April 9, 2020, Michigan Governor Gretchen Whitmer issued an updated “Stay Home, Stay Safe” Executive Order (EO) 2020-42, which extends the state’s emergency declaration through April 30, 2020. The EO reaffirms the measures set forth in Executive Order 2020-21, clarifies prior measures, and adds additional restrictions. The order took effect on April 9, 2020, at 11:59 p.m., at which time EO No. 2020-21 was rescinded.

What Has Stayed the Same?

The following provisions are the same in EO 2020-42 and EO 2020-21:

• Michigan residents must continue to stay in their homes to the maximum extent feasible.
• Businesses are prohibited from requiring employees to leave their homes and go to workplaces unless the employees are critical infrastructure workers whose job duties are “necessary to sustain or protect life” or to conduct minimum basic operations.
• Businesses must determine which of their workers are critical infrastructure workers whose duties are necessary to sustain or protect life and inform them of such designation in writing.
• A willful violation of the EO is a misdemeanor.

What Is New in EO 2020-42?

Employers that continue in-person work must adopt specific social distancing practices and mitigation measures for those employees required to report to the workplace, as follows:

• Develop a COVID-19 preparedness and response plan, “consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration.” Such plan must be available at company headquarters or the worksite.
• Restrict the workers on the premises to only those who perform critical infrastructure functions necessary to sustain or protect life, or perform minimum basic operations.
• Promote remote work “to the fullest extent possible.”
• Keep workers and customers who are on premises at least six feet apart to the maximum extent possible.
• Increase “standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19,” and adopt protocols “to clean and disinfect in the event of a positive COVID-19 case in the workplace.”
• Adopt policies “to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.” Recently, the governor’s office issued a non-retaliation Executive Order (EO 2020-36). In addition, the governor’s office has issued a flow chart indicating when workers should remain home.
• Follow other social distancing practices and mitigation measures recommended by the Centers for Disease Control and Prevention (CDC).

Employees designated as critical infrastructure workers do not need to carry copies of their designations when they leave home for work.

Clarification on Businesses That May Remain Open for In-Person Work and Customers

EO 2020-42 clarifies which businesses may remain open for in-person work and customers as follows:

• retail stores that sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of homes, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers;
• laundromats, coin laundries, and dry cleaners;
• hotels and motels that do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities; and
• motor vehicle dealerships, where the only workers present are those necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers. (Showrooms must remain closed to in-person traffic, but their service, parts, and body shop departments may remain open.)

Requirements for Stores That Remain Open for In-Person Sales

Under the order, any store that remains open for in-person sales must adopt specific social distancing practices and mitigation measures as follows:

• Establish lines to regulate entry with markings so that customers can stand at least six feet apart from one another while waiting.
• Explore alternatives to lines, including allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities, or establishing curbside pickup.
• For stores of less than 50,000 square feet of customer floor space, restrict the number of people in the store (including employees) to 25 percent of the total occupancy limits established by the state or local fire marshal.
• For stores of more than 50,000 square feet, restrict 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 required to be closed, such as areas dedicated to carpet or flooring, furniture, garden centers and plant nurseries, and paint.
• By April 13, 2020, cease advertising goods that are not groceries, medical supplies, or items necessary to maintain the safety, sanitation, and basic operation of residences.
• Create at least two hours per week of dedicated shopping time for people over 60, pregnant women, and those with chronic conditions such as heart disease, diabetes, and lung disease.

Key Takeaways

Michigan continues to impose a vigorous stay-at-home approach. Businesses that remain open must follow the mandates of EO 2020-42 and require only workers whose duties are necessary to sustain or protect life, or who perform minimum basic operations, to come to a worksite. EO 2020-42 adopts the guidelines contained in the U.S. Cybersecurity and Infrastructure Security Agency’s (CISA) March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.

State agencies appear to be collaborating to interpret and enforce the executive order. This includes active legal enforcement, and the Michigan attorney general and the Detroit Police Department have reported significant recent enforcement activity.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center