The Michigan Chamber has received thousands of questions on Governor Whitmer’s Stay At Home Executive Order since it was announced on Monday, March 23rd. Unfortunately, as drafted the order is difficult to interpret and apply. We are continuing to work with the Governor’s staff to clarify questions from our members regarding the application of the order to their specific situation confusion .
When trying to determine whether your business is able to remain open or must close, think of the order categorizing businesses in two ways. Are your employees deemed “critical infrastructure workers” and/or are they necessary to conduct “minimum basic operations”.
The Governor’s office has provided the guidance that the most important step for businesses is to use their best judgement. The first section of the order says, “This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life”.
Businesses Employing Critical Infrastructure Workers
If you employ critical infrastructure workers, you should remain open. Critical infrastructure workers are those that work in the industries on page 5, section 8 of the order. These are:
a) Health care and public health
b) Law enforcement, public safety, and first responders
c) Food and agriculture
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
n) Defense industrial base
For more details on these broad categories go to the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency’s website.
If you are considered essential under these criteria, make sure you supply notification to your employees that they are “critical infrastructure workers”. This notification can be done orally until the end of the month. After that, you will have to supply these employees with more substantive notice such as an email or letter. This notice is not required for employees working in healthcare, public health, essential government roles or employees engaged in charitable work.
Suppliers and Distributors
If your business supplies or distributes to businesses who employ critical infrastructure workers, you may remain open. Make sure to get a notice from your customer that they employ critical infrastructure workers and that they need you to continue operating. This can be an oral notification up to the end of the month and then must be more substantive such as an email or letter.
The question that arises is whether you can only service your customers who employ critical infrastructure workers or every one of your customers. The guidance on this is unclear. Some attorneys say you can service all customers; however, in conversations with the Governor’s office we believe their interpretation would be that you cannot. We know this is confusing and frustrating so remain focused on using your best judgement and if unsure discuss with legal counsel.
Businesses Employing Workers to Carry Out Minimum Basic Operations
If you are a business and you need your employees (or if you yourself) need to perform minimum basic operations, you can do so. Minimum basic operations are:
a) Maintain the value of your inventory or equipment
b) Care for animals
c) Ensure security
d) Process transactions
e) Facilitate the ability of other workers to work remotely
If you need employees to carry out these duties, you must designate them accordingly through notification. This notification can be done orally till the end of the month. After the March 31st you must make the designation in a more substantive manner such as a letter or email.
This order is enforceable by the State Attorney General, State Police, County Sheriff, and local police agencies. The Chamber is getting reports that every agency is enforcing the order differently. So again, use your best judgement.
We have requested that the Governor’s office provide guidance to state and local police agencies on how to enforce this order more uniformly. The Chamber will supply any guidance to member businesses as soon as information becomes available.
Further Guidance Needed?
The Governor’s office is compiling a list of Frequently asked Questions which can be found here: https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-522631--,00.html
If you have questions or want to discuss your individual situation with a member of the chamber please contact Dan Papineau at email@example.com
It is important to remember that any advice provided by the Chamber or its employees is only based on our interpretation. Do not take our advice as legal advice.