Governor Walz Issues Executive Order Allowing Certain Businesses to Reopen

On Thursday, April 23, 2020, Minnesota Governor Tim Walz issued Executive Order 20-40 which provides a process for allowing certain businesses in the state to reopen “no sooner than 11:59 pm on April 26.” Employers should carefully review the Executive Order in order to determine whether it allows them to resume operations as of that time, and what procedural steps must be taken in order to do so.

The key components of the Executive Order are:

The Executive Order only applies to certain types of businesses.

First and foremost, Governor Walz’s March 13, 2020, Stay-at-Home Order remains in effect. However, Executive Order 20-40 recognizes that certain businesses which do not involve direct interactions with customers or the general public should be allowed to reopen, specifically (1) industrial and manufacturing businesses; and (2) office-based businesses. The Minnesota Department of Employment and Economic Development (MN DEED) has issued a guidance setting forth the following definitions for these types of businesses:

Industrial Businesses – “places of employment in which goods are in the process of being created. Agriculture, forestry, fishing and hunting qualify, as do mining, construction, utilities and manufacturing. Wholesale trade and warehousing also qualify as they are preparing those goods for sale to customers and consumers.”

• Office-Based Businesses – “places of employment in which workers do their work within an office space where people primarily do their work at their desk and whose work is primarily not customer facing.”

All workers who can work from home must continue to do so

The Executive Order expressly states that even if a business does not involve public or customer interaction, if an employee is able to work from home they must be allowed to continue doing so.

In order to reopen, businesses must complete a “COVID-19 Preparedness Plan”

In order to reopen, a business must first complete a plan highlighting how they intend to operate safely in light of COVID-19. MN DEED has issued a template plan employers can use, or employers may elect to create their own COVID-19 Preparedness Plans.  Any such plan must meet all of the following requirements:

    • Require work from home whenever possible;
    • Ensure that sick workers stay home, including by conducting health screenings to prevent sick workers from entering the workplace;
    • Establish social distancing policies;
    • Establish employee hygiene and source control policies; and
    • Establish cleaning and disinfection protocols for areas within the workspace.
The Plan must be disseminated to employees, who must also receive training

The COVID-19 Preparedness Plan must be provided in writing to all workers, and must be posted in the workplace. Further, employers must provide training to workers on the content of the plan so that workers are able to understand how to perform the precautions necessary to protect themselves and their co-workers from COVID-19. The Executive Order, however, does not provide any additional guidance as to what those trainings must entail; however, employers are expected to create and maintain “documentation demonstrating compliance” with the training requirement for review upon request by regulatory authorities.

Social distancing must still be followed

The Executive Order requires that companies still practice social distancing once they reopen.  Therefore, employers may have to move work stations and adjust job duties in order to ensure proper spacing between employees.

The Plan requirements appear to only apply to Non-Critical Sector Business

Notably, neither the Executive Order nor the MN DEED guidance appear to require all businesses to create COVID-19 Preparedness Plans.  For example, Critical Sector employers who have been operating during the pandemic appear to be exempted from this requirement. This could change in the near future, however, as addition Executive Orders are issued on the subject of reopening businesses.

Furloughed or laid off employees must return to work if able or risk losing unemployment benefit eligibility

The MN DEED guidance also notes that employees who are currently not working and who are receiving unemployment benefits must return to work if their employer is reopening under the Executive Order.  Indeed, the guidance warns that if the employee is offered work, they must return if they are able to do so, even if the employee does not “feel safe returning to work on site [due to COVID-19].”

Bottom Line

The Executive Order is a small but positive step forward toward reopening the economy. It also provides a roadmap for how the Governor may intend to open more businesses in the future.