To help flatten the curve of the COVID-19 coronavirus pandemic, Governor Gretchen Whitmer signed the “Stay Home, Stay Safe” Executive Order today, directing all Michigan businesses and operations to temporarily suspend in-person operations not necessary to sustain or protect life. Michigan is now the tenth state to impose a stay-at-home or shelter-in-place restriction on its residents, joining California, Connecticut, Delaware, Illinois, Louisiana, Maryland, Massachusetts, New Jersey, New York, and Ohio.
Governor Whitmer’s mandate is broad but does allow individuals to leave their homes if they are a part of the critical infrastructure workforce as defined by the Department of Homeland Security (DHS) guidelines, engage in an outdoor activity while complying with social distancing protocols, or perform tasks necessary to the health and safety of themselves or their family.
The Department of Homeland Security’s Critical Infrastructure Guidelines
The DHS Guidance on the Essential Critical Infrastructure Workforce provides a list of 16 critical infrastructure sectors “whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.” These sectors include:
- Healthcare/Public Health
- Information Technology
- Law Enforcement, Public Safety, First Responders
- Food and Agriculture
- Water and Wastewater
- Transportation Systems
- Public Works
- Communications and Information Technology
- Other Community-Based Government Operations and Essential Functions
- Critical Manufacturing
- Hazardous Materials
- Financial Services
- Nuclear Reactors
- The Defense Industrial Base
DHS’s publication is intended to help state, local, and industry partners in “identifying the essential workers needed to maintain the services and functions Americans depend on daily and need to be able to operate resiliently during the COVID-19 pandemic response.” These industries are generally defined to encompass not only the businesses that fall squarely within their definitions but also those businesses critical to sustaining their ongoing functions.
Governor Whitmer’s Executive Order articulates four main objectives:
- Suppress the spread of COVID-19;
- Prevent the state’s health care system from being overwhelmed;
- Allow time for the production of critical test kits, ventilators, and personal protective equipment; and
- Prevent needless deaths.
Besides employees in the sectors named in the DSH guidelines, Governor Whitmer’s Executive Order includes certain childcare workers, insurance industry employees (to the extent their work cannot be done by telephone or remotely), workers at designated suppliers and distribution centers, and employees who provide food, shelter, and other necessities of life for the needy.
Michigan’s order also allows businesses to designate individuals necessary to conduct minimum basic operations. These people include those whose in-person presence is strictly necessary for a 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.
Importantly, Michigan companies should exercise caution when categorizing itself as essential because public backlash and legal consequences may follow if a business tries to describe itself as an “essential” service or “critical” sector when it clearly is not. Anyone who willfully violates this Executive Order can be charged with a misdemeanor.
Kreis Enderle Attorneys Are Here to Counsel You Through the COVID-19 Pandemic
We can help. The lawyers at Kreis Enderle are here to assist individuals and organizations as they adapt to changing COVID-19 information and directives. We will continue to keep you informed as laws are enacted in response and as the situation progresses.