Posted April 23rd, 2020 in Top Stories, Legal Insights with Tags COVID-19, COVID-19 for Employers
Returning to Work: Minnesota allows more businesses to resume in-person operations starting April 27
On April 23, Governor Walz issued Emergency Executive Order 20-40, which expands the number of businesses permitted to operate in-person during Minnesota’s “stay-at-home” order. Under the Order, individuals working in certain types of businesses are permitted to return to work starting next week, Monday, April 27, provided other conditions are met.
Which businesses are permitted to reopen?
In addition to the Critical Sector Businesses already permitted to operate under previous Executive Orders, EO 20-40 allows two types of businesses to resume in-person operations:
- Industrial and Manufacturing Businesses; and
- Office-Based Businesses
Industrial and Manufacturing Businesses include wholesale trade, warehousing, and places of employment in which goods are in the process of being created. It does not include customer-facing retail environments associated with an industrial or manufacturing business in this category.
Office-Based Businesses are those businesses where workers work in an office space, at their desk, and where their work is primarily not customer facing. It does not include customer-facing retail environments associated with office-based businesses in this category.
Which workers are permitted to return to work?
Only workers who cannot perform their work from home are permitted to report in person to work. The Order specifically requires all workers who can work from home to continue doing so.
Does this mean workers in the covered businesses no longer need to comply with the “stay-at-home” order?
No. EO 20-40 creates a limited exception to the stay-at-home order. The only change is that certain workers will be permitted to leave their homes to travel to and from work. The Order also allows workers to leave home to transport children to child care or school settings as necessary while they work.
What does a business need to do before it is allowed to reopen?
Covered businesses are only permitted to reopen after they create and implement a Preparedness Plan. The plan must comply with Minnesota’s OSHA Standards as well as guidance from the Minnesota Department of Health and the CDC. Plans must include:
- A requirement that all workers who can work from home continue to do so;
- Policies and procedures to prevent sick workers from entering the workplace (including health screenings);
- Social distancing policies and procedures;
- Policies for hygiene and source control for workers; and
- Cleaning and disinfection policies.
To meet the implementation requirements, senior management must sign and certify the plan, and it must be disseminated and posted to all workers. Employers are also required to train workers on the plan contents and procedures, in appropriate language and literacy levels.
Employers do not need to submit plans for prior approval, but they must make the plans available to regulatory authorities and public safety officers if requested.
How will the Order be enforced?
The Order authorizes the Department of Labor and Industry to determine the adequacy an employer’s Preparedness Plan, as well as to issue citations, civil penalties, and orders closing places of employment with unsafe or unhealthy conditions. The DLI is also authorized to penalize businesses who retaliate against employees who raise health and safety concerns.
Individuals who willfully violate the order are subject to misdemeanor prosecution and fines or imprisonment. Business owners, managers, or supervisors who require or encourage employees to violate the order face prosecution for a gross misdemeanor and are also subject to fines or imprisonment.
The Attorney General is also authorized to seek civil relief, including penalties up to $25,000 per occurrence.
Does this mean covered employers can require employees to return to work?
It depends. Covered employers are permitted to reopen if they meet the conditions, but the Order continues to require employees who can work remotely to do so. Employers also must still comply with existing employment and COVID-19 related laws, including, as applicable, the Families First Coronavirus Relief Act, which gives certain employees job-protected leave rights during the pandemic. For example, employers may need to provide paid leave for eligible employees needing to care for their children due to COVID-19 related school closures. Notably, Governor Walz issued one other Emergency Executive Order today: Emergency Executive Order 20-41, which closed Minnesota schools for the rest of the school year.
Our attorneys are available to assist with questions about the interplay between these laws and other issues related to returning to work.