Executive Order 2020-21 (COVID-19) – What Businesses Need to Know

Under Executive Order 2020-21 (COVID-19) (the “Order”), no person or entity shall operate a business or conduct operations that require workers to leave their homes or place of residence except to the extent those workers who are required to leave their homes are (a) necessary to sustain or protect life or (b) necessary to conduct minimum basic operations. The Order became effective March 24, 2020, at 12:01 a.m. and remains in effect until April 13, 2020, at 11:59 p.m. The Governor will continue to evaluate the need for this Order prior to its expiration and may modify or extend it as needed.

Minimum Basic Operations

Workers necessary to conduct minimum basic operations are those workers 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.”

If you determine your business has any workers who are necessary to conduct minimum basic operations in-person at your building or location, you must inform them of this in writing (email, public website, or other means are acceptable). Verbal designations may be made until March 31, 2020, at 11:59 p.m.

Critical Infrastructure Workers

A business that employs “critical infrastructure workers” may continue certain in-person operations, but even then, in-person activities that are not necessary to sustain or protect life should be suspended until the Order is lifted. Please see below for further information on who may qualify as a “critical infrastructure worker”.

The Order allows a business that employs “critical infrastructure workers” to go down the supply chain and designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of that designating business’s “critical infrastructure workers.” If a supplier, distribution center, or service provider is so designated by a customer, such supplier, distribution center, or service provider may then designate its workers as “critical infrastructure workers” but only to the extent those workers are necessary to enable, support, or facilitate the work of the original operation’s or business’s “critical infrastructure workers.”

A designated supplier, distribution center, or service provider may also go down the line and 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.”

The Order requires that all 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. Verbal designations may be made until March 31, 2020, at 11:59 p.m.

If a customer is telling you that your business has been designated and your operations are necessary to support or facilitate the work of its “critical infrastructure workers,” you should require them to provide a detailed statement in writing to that effect.

Using these designations should be done carefully and only to the extent necessary. Any abuse of the “critical infrastructure worker” or “minimum business operations” designations by a business may subject that business to sanctions to the fullest extent of the law. Furthermore, a willful violation of the Order is considered a misdemeanor, and individuals who fail to comply with the Executive Order could incur a $500 fine and/or 90 days in jail for each violation.

Requirements for any Continued In-Person Operations by Employees

All designated workers should have something in writing from your business that identifies them individually, identifies your place of business by address, states that they have been designated by your business as a “critical infrastructure worker” or a worker necessary to conduct minimum basic operations, and states that the employee is therefore permitted under the Order to travel to and from work to fulfill necessary duties.

If your business is permitted to continue in-person operations in some capacity, you still must observe the following requirements to comply with the Order and its mandate:

1. Although your business may employ “critical infrastructure workers”, in-person activities that are not necessary to sustain or protect life are required to be suspended until normal operations resume.
2. Designate your “critical infrastructure workers” or employees necessary to conduct minimum basic operations and inform them of their specific designation. All designations must be in writing to the workers that are being designated (email, public website, or other means are acceptable). Verbal designations may be made until March 31, 2020, at 11:59 p.m.
3. You must still restrict the number of workers on your premises to those strictly necessary.
4. You must promote working remotely instead of in-person to the extent possible.
5. For any in-person operations that continue, continue to promote and enforce social distancing to the extent possible (e.g., keep everyone at least six feet away from each other) – this includes all areas of your building, including break rooms, bathrooms, and meeting rooms. If your business has customers visiting your building or location, these requirements should extend to those customers as well.
6. 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. Workers who do continue necessary in-person operations should be reminded to continue to utilize any increased hand-washing and sanitizing stations that have been placed around your building or location.
7. Adopt policies to prevent workers from entering your building if they display any respiratory symptoms or have had contact with someone who is known or suspected to have COVID-19. It is recommended that you clearly state to all workers, both verbally and in writing, that no worker is permitted to enter the building if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19, and that any worker who has symptoms or has had a known or suspected contact with an infected person should immediately notify you or a designated supervisor.
8. Adopt any other social distancing practices and mitigation measures recommended by the Centers for Disease Control and Prevention. As these are adopted, notify all workers of the new or enhanced protocols.

Determining Who is a “Critical Infrastructure Worker”

If you are not sure whether your business employs “critical infrastructure workers”, please contact us. Per the Order, “critical infrastructure workers” include some workers 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;
• Insurance industry (to the extent their work cannot be done by telephone or remotely);
• Certain volunteer workers related to economically disadvantaged or needy individuals;
• Certain critical labor union functions.

For additional “critical infrastructure workers”, see Memorandum On Identification Of Essential Critical Infrastructure Workers During Covid-19 Response.

If you have any questions about the Order, please contact your Parmenter Law attorney or a member of our Business Law Team listed below:

Chris Kelly (231) 722-5414 chris@parmenterlaw.com
Will Meier (231) 722-5408 will@parmenterlaw.com
Josh Reece (231) 722-5426 josh@parmenterlaw.com
John Schrier (231) 722-5401 john@parmenterlaw.com
Ben Reider (231) 722-5418 ben@parmenterlaw.com