Stay Home Minnesota: How is your business affected?

The novel coronavirus has added new layers of challenges and complexity to operating a business and it seems we are presented with new challenges and difficult decisions every day.  The purpose of this article is to provide direction in terms of how the recent Minnesota Stay at Home Order may impact your business.

The March 25, 2020 Governor’s Executive Order provides that, unless an exemption applies, Minnesota residents are required to stay at home starting at 11:59 p.m. on Friday, March 27 through Friday, April 10 at 5 p.m., unless extended further. Governor’s March 25, 2020 Emergency Executive Order 20-20, “Directing Minnesotans to Stay at Home” (the “Order”).  The CISA, a cyber-infrastructure division within the U.S. Department of Homeland Security, also issued Guidance for essential critical infrastructure employees on March 23. (the “CISA Guidance”). The Order incorporates the CISA Guidance in order to provide many of the specific criteria and seemingly in an effort to ensure consistency with other states’ stay at home orders.

There are certain exemptions for workers employed in “critical sectors” of our economy. Public reports indicate that 78 percent of employees are employed by sectors deemed “critical” under the Executive Order. This has led to questions about what the Order means for businesses that are deemed to be “critical sectors” and whether employees in those businesses must work from home if they can do so or, if not, what precautions must be taken.

We are advising our clients to send a letter to all employees directing them to work remotely if possible and if employees will continue to travel to work, a letter explaining the basis for the employer’s determination that it fits within one of the Critical Sectors or that the particular employee or class of employees fits within one of the permitted Critical Sector functions.  It will likely be the case for many businesses that some employees are permitted to travel to work and others will not depending on: (1) whether the employee can perform their job remotely and (2) whether the employee’s job fits into one of the Critical Sectors identified below. 

Remote Work is Encouraged and Required if Possible

The Order does not restrict virtual work or telework, and Minnesotans working in any field are encouraged to work from their home or residence as much as possible.  The Order designates a list of exempt Critical Sectors and provides for the workers supporting those Critical Sectors to travel to and from work with the important caveat that “[a]ll workers who can work from home must do so.”

Many businesses have instructed most of their employees to work remotely with the exception of a skeleton crew of critical office, mail and accounting functions, which the Order generally permits. were instructed to work from home until further notice with the exception of the accounting and central Section 6h of the Order exempts workers providing the accounting and central office functions, which includes the following categories of employees in its identification of Communications and Information Technology “Essential Critical Workforce” (Order § 6h, CIS Guidelines):

1. Central office personnel to maintain and operate central office, data centers, and other network office facilities;
2. Customer service and support staff … who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, and troubleshooting;
3. Workers responding to cyber incidents involving critical infrastructure, including medical facilities, SLTT governments and federal facilities, energy and utilities, and banks and financial institutions, and other critical infrastructure categories and personnel;
4. Workers supporting communications systems and information technology used by law … critical industries.

The Order has no impact on employees’ remote work and authorizes workers to travel to and from the office and perform their work in the central office, mail, payroll and billing services that cannot be conducted remotely.

Critical Sectors

To the extent employees working remotely are required to travel to the place of work if remote work is not practical given the particular task/reason for travel or based on the particular employee’s job, that travel is authorized to the extent the employer is deemed a Critical Sector business.  The list of Critical Sectors is necessary to “ensure the health, safety, and security of all Minnesotans.” The Critical Sectors include the business sectors identified below:

1. Healthcare and public health (Order § 6a), which includes: Caregivers (e.g., physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists). Further, the Order broadly categorizes health care workers listed in the federal CISA Guidance as critical workers. Under prior Executive Orders, all non-essential or elective surgeries and procedures, including non-emergent or elective medical, dental care, or veterinary care, that utilize personal protective equipment or ventilators were required to be postponed by March 23. Emergency Executive Order 20-09, March 19, 2020. A “non-essential surgery or procedure” is one that can be delayed “without undue risk to the current or future health of a patient.”

2. Food and agriculture (Order § 6c), which includes:

   • Workers supporting groceries, pharmacies, convenience stores, and other retail that sells human food, animal/pet food, and beverage products;

   • Restaurant carry-out and quick serve food operations – Carry-out and delivery food employees;

   • Food manufacturer employees and their supplier employees; and

   • Farms.

3. Transportation and logistics (Order § 6f), which includes:

   • Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-jurisdiction travel);

   • Employees of firms providing services that enable logistics operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use.

   • Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions, and services;

   • Automotive repair and maintenance facilities;

   • Manufacturers and distributors (to include service centers and related operations) of packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations;

   • Postal and shipping workers; and

   • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers.

4. Communications and information technology (Order § 6h), which includes:

   • Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations (including cable marine depots and submarine cable ship operators), Internet Exchange Points, and manufacturers and distributors of communications equipment;

   • Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering and reporting;

   • Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and/or technicians to manage the network or operate facilities;

   • Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables; and

   • Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators.

5. Critical manufacturing (Order § 6j), which includes workers necessary for the manufacturing of materials and products needed for medical supply chains, and for supply chains associated with transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base. Additionally, workers needed to maintain the continuity of these manufacturing functions and associated supply chains.

6. Hazardous materials (Order § 6k), which includes:

   • Workers who support hazardous materials response and cleanup; and

   • Workers who maintain digital systems infrastructure supporting hazardous materials management operations.

7. Financial services (Order § 6l), which includes:

   • Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities);

   • Workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers); and

   • Workers who support financial operations, such as those staffing data and security operations centers.

One federally chartered bank notified its attorney network of its vital part in maintaining the financial services industry:

Our ability to provide critically needed or essential financial services depends upon our vendors’ and contractors’ performance of their contractual obligations to us, and upon which we rely. You are such a vendor. It is therefore absolutely necessary that you continue to fulfill your contractual obligations to us so that we can, in turn, continue to fulfill our critically needed and essential financial services to the nation. Accordingly, we fully expect and rely upon your continued contractual performance.

8. Chemical (Order § 6m), which includes:

   • Workers supporting the chemical and industrial gas supply chains, including workers at chemical manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, textiles, and paper products;

   • Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items; and

   • Workers supporting the production of protective cleaning and medical solutions, personal protective equipment, and packaging that prevents the contamination of food, water, medicine, among others essential products

9. Education (Order § 6w), which includes educators and other workers supporting public and private schools, as well as higher education (g., colleges and universities). This category includes educators and other workers providing care to children as provided by Executive Order 20-19. Executive Order 20-02 remains in effect.

10. Construction and critical trades (Order § 6x), which includes workers in the skilled trades such as electricians, plumbers, HVAC and elevator technicians, and other related construction of all kind. This category also includes exterminators, cleaning and janitorial staff for commercial and governmental properties, moving and relocation services, security staff, operating engineers, and all other service providers who provide services that are necessary to maintain the safety, sanitation, and essential operation of homes and residences and the Critical Sectors listed in this Executive Order.

11. Child care providers (Order § 6y), which includes workers in child care centers, family child care, schools, and other facilities. Such providers are encouraged to remain open to provide child care services for workers in the Critical Sectors listed in this Executive Order as possible and insofar as public health guidance can be followed.

12. Hotels, residential facilities and shelters (Order § 6z), which includes workers supporting hotels and motels, facilities and shelters for adults, seniors, and children, including victims of domestic violence, people with developmental disabilities, intellectual disabilities, substance abuse disorders, or mental illness. Such facilities and shelters include halfway houses and residential treatment programs.  This category also includes workers needed to keep apartment complex buildings and other congregate residences or homes operational and sanitary.

13. Charitable and social services organizations (Order § 6bb), which is limited to workers supporting organizations that are engaged in hunger relief work, and those that provide food, shelter, prescription delivery, mental health and substance abuse treatments, and other social services, as well as other necessities of life for individuals in need of such services, older adults who live alone, people with disabilities, and those who need assistance as a result of this emergency.

14. Legal services (Order § 6cc). This category is limited to workers who are necessary to provide essential legal services. Essential legal services include:

    • Advice and representation required to ensure the immediate and critical health, safety, and liberties of Minnesotans, including but not limited to, end-of-life planning, immigration, essential services to elders and persons with disabilities, child supports, child-protection and domestic abuse matters, protection of personal financial resources necessary to meet basic needs, prosecution or defense in ongoing criminal matters, or all matters in which individuals are held in custody pending a legal proceeding, and proceedings held in the district or appellate courts during the effective period of the order.
    • Advice and representation related to the continuation of the Critical Sectors identified in this Executive Order, including ensuring compliance with this Executive Order, previous Executive Orders, and all applicable laws, rules, and regulations applying to Critical Sectors.
    • Supporting housing and shelter-related efforts, including loan applications, loan processing, seeking temporary relief from residential and commercial loan or lease provisions, retention of gas, electric, or water utility services, and seeking temporary relief from residential evictions or foreclosures, or other actions intended to keep people in their homes.

Section 6ccii of the Order exempts workers providing estate planning, family law and litigation services.  Section 6cciii exempts workers providing advice and representation related to the continuation of Critical Sectors, which are identified in this article and the additional critical sectors identified in the CIS Guidelines.

15. Laundry services (Order § 6ff), which is limited to workers who support laundromats, dry cleaners, industrial laundry services, and laundry service providers for other Critical Sectors.

16. Real Estate Transactions (Order § 6hh), which is limited to workers who facilitate and finance real estate transactions and real estate services, including appraisers and title services.

17. Essential Supply Stores (Order § 6ii), which is limited to workers at businesses that sell products, tools, materials, or supplies necessary for: (1) the above Critical Sectors to continue their essential operations, (2) for workers to work from home, or (3) for the maintenance of the safety, sanitation, and essential operation of homes or residences.

Precautions for Employees on the Job

The Order requires that employers adhere to Occupational Safety and Health Standards and the Minnesota Department of Health and CDC Guidelines for COVID-19, including physical distancing and hygiene. (Order § 7).  The CISA Guidance recommends that employers follow guidance from the CDC and state public health officials to limit the spread of COVID-19.  The Guidance further states that in-person, non-mandatory activities should be delayed until the resumption of normal operations. It also states that if remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease, such as separating staff by shifts, hours or days or by physical distancing.

If you have specific questions about the impact of COVID-19 on your business, you should obtain advice from an attorney. We are happy to help and answer any questions that you may have.

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Brett Larson is a Shareholder and Chair of the Minneapolis Division. In addition to managing his practice, Brett oversees all business operations of the Minneapolis Division. Brett also serves as a member of the Firm Board of Directors and on the Firm’s COVID Crisis Team.  Brett serves as outside general counsel to many U.S. based businesses.  Brett focuses his practice in the areas of mergers and acquisitions, corporate organization and reorganization, international transactions and succession planning for businesses and business owners. Brett can be reached at 612.672.3649 or blarson@messerlikramer.com.