Gov. Whitmer issued Executive Order 2020-59 (Order) on April 24, 2020. The Order replaces and updates the former Stay Home, Stay Safe orders issued by the governor on March 23, 2020 (Executive Order 2020-21) and April 9, 2020 (Executive Order 2020-42) (together, the Former Orders). The Order generally continues the stay at home restrictions implemented under the Former Orders but with several key changes. In most cases, the Order eases the restrictions imposed on businesses originally, particularly with respect to certain retail operations. Here is an overview of the relevant changes:
- The Order goes into effect immediately and generally extends the existing stay-at-home rules through May 15, 2020.
- The Order’s enforcement terms and penalties remain the same (i.e., up to $500 fine and/or 90 days in jail for willful violations and potential for other sanctions).
- The Order’s restrictions on in-person operations remain the same with respect to critical infrastructure workers and workers performing minimum basic operations. However, the Order now permits in-person operations by certain workers who perform a resumed activity, as detailed below.
- As noted above, the definition of critical infrastructure workers has not changed. The Order continues to incorporate only Version 1.0 of the DHS/CISA guidance regarding critical infrastructure as issued March 19, 2020. In other words, existing restrictions on many manufacturing companies and construction firms remain the same (assuming those companies do not employ workers who perform resumed activities, described below).
Changes for Businesses
5. The Order creates a new class of businesses that may resume in-person operations — those employing workers who perform resumed activities.
- Such workers generally consist of the following:
- Workers who process or fulfill remote orders for goods for delivery or curbside pick up;
- Workers for garden stores, nurseries. lawn care, pest control and landscaping operations (including maintenance workers and groundskeepers necessary to maintain the safety and sanitation of certain outdoor recreation establishments not closed under Executive Order 2020-43);
- Workers who perform bicycle maintenance or repair;
- Workers for moving or storage operations.
- Businesses must designate these workers in writing.
- Businesses employing such workers may sell goods to customers via curbside pick up or delivery only, and such businesses must also comply with the social distancing requirements described in the Order. These businesses can sell any goods previously sold in the ordinary course of business, including goods that are not deemed necessary.
- Notably, the Order does not address the supply-chain needs of a “resumed” business, particularly with respect to goods that are not “necessary.” As written, the Order only contemplates the necessary suppliers of critical infrastructure businesses. Therefore, it is theoretically possible that a “resumed” business could operate only to the extent of its existing inventory of “non-necessary” goods, unless its suppliers have independent grounds on which to continue operations. We are hopeful this is addressed by the Governor in the near future.
6. All businesses and operations whose workers perform in-person work must provide non-medical grade face coverings to their workers (N95 masks and surgical masks should generally be reserved for health care professionals, and first responders). Additionally, certain garden stores, nurseries, and lawn care/landscaping operations must provide PPE, such as gloves, goggles, face shields, and face masks to their employees, as appropriate, and should adopt protocols limiting the sharing of tools and equipment to the extent possible.
7. Stores with more than 50,000 square feet may now reopen those areas of the store that were closed under the Former Orders, including those areas relating to the sale of carpet or flooring, furniture, paint, and garden and nursery supplies.
Changes for Individuals
8. Individuals are now expressly permitted to leave their homes to engage in recreational boating and golfing (subject to existing social distancing requirements).
9. Individuals may again travel between residences within the state, including moving to a new residence.
10. Individuals able to medically tolerate a face covering must wear face coverings such as homemade masks, scarfs, bandanas or handkerchiefs over their nose and mouth when in any enclosed public space (e.g., grocery store, etc.). Notably, no individual is subject to penalty under the Order for failure to wear a face covering when in any enclosed public space as required by the Order. Non-discrimination protections under the Elliott-Larsen Civil Rights Act and other Michigan laws also apply to protect individuals who wear face masks pursuant to the Order.