Businesses’ Transition from Stay Home MN to Stay Safe MN: Why COVID-19 Preparedness Plans are Key

May 2020

On Wednesday night, Governor Walz announced a series of efforts targeted at keeping Minnesotans safe as the economy gradually reopens for business. That same evening, he signed four new Executive Orders to facilitate these efforts. Such orders included Executive Order 20-53, which extends Minnesota’s state of peacetime emergency until June 12, 2020, and Executive Order 20-55, which reiterates a number of recommendations aimed at protecting at-risk individuals with underlying health conditions or other circumstances that make them more susceptible to COVID-19. For businesses, however, the major focus of the evening involved the other Executive Orders that Governor Walz signed, which are summarized below. 

Most notably, Executive Order 20-56 (“EO 20-56”) ends the previous Stay Home MN Order and replaces it with what is now being called “Stay Safe MN.” This new phase of the pandemic will permit some additional establishments to resume business starting Monday, May 18, 2020, but only if they have a COVID-19 Preparedness Plan in place that meets certain requirements. You can learn more about these requirements in FMJ’s previous articles on this topic, which can be found here and here. The COVID-19 Preparedness Plan is of the utmost importance to businesses as they gradually reopen and FMJ can help. While the Minnesota Department of Health (MDH) has provided a template that outlines the general framework for such Plans, the template does not contain the comprehensive substance or procedural details that employers need to be able to execute the Plan. Instead, it contains a very basic list of the required Plan topics that businesses need to address and develop in order for it to be fully-compliant.

EO 20-56 now allows certain retail stores, shopping malls, and other businesses to reopen on Monday. Some of these establishments, however, will face stricter requirements than those imposed upon the Critical and Non-Critical Businesses that were already permitted to continue operating under the previous orders. In particular, EO 20-56 requires newly reopening customer-facing businesses to operate at a drastically reduced capacity (50% or less of their normal occupancy limit), maintain a physical distance of 6 feet for both customers and workers, and post signage that openly discourages gathering. Customer-facing businesses that share common areas, such as malls, must implement Preparedness Plans that provide for an enhanced sanitizing, cleaning, and disinfecting regimen. Household-services businesses (i.e., house cleaning, maid services, etc.) must also include specific provisions in their Preparedness Plans that address protocols for keeping workers and customers safe. 

Critical Sector businesses that were never closed are not impacted by EO 20-56, but the order reiterates that any Non-Critical Businesses that are currently open or planning to reopen must establish and implement a Preparedness Plan if they have not already done so. All businesses are instructed to post social distancing and hygiene instructions at entrances and in locations that can be easily seen by customers and visitors. 

In addition to emphasizing preparedness planning, EO 20-56 also adds new guidance for outdoor recreational activities and associated facilities, including but not limited to a relaxed restriction on gathering (groups of up to 10 may now meet with proper social distancing) and a requirement that all such facilities that continue doing business must adhere to the DNR’s Outdoor Recreation Guidelines (available here). 

The closure of bars, restaurants, and other places of public accommodation is extended through May 31, 2020 under EO 20-56, but the Governor intends to announce a plan for a gradual reopening of these establishments by no later than May 20, 2020. 

Consistent with CDC and MDH recommendations, EO 20-56 strongly encourages the use of manufactured or homemade cloth face coverings in all public settings where social distancing measures are difficult to maintain. However, this order clarifies that such face coverings are intended as a form of source control (to help limit the person wearing the covering from infecting others) and are not yet known to be protective of the wearer. Thus, they are not currently technically considered “personal protective equipment.” Individuals are still encouraged to stay near their homes, avoid all unnecessary travel, and work from home whenever possible 

Finally, Governor Walz also issued Executive Order 20-54 (“EO 20-54”) on Wednesday, which is aimed at protecting workers from unsafe working conditions and retaliation for raising safety concerns related to COVID-19. This new order recognizes that workers whose jobs place them in regular proximity to co-workers or the public are at increased risk of COVID-19 transmission. In an effort to protect those workers’ safety, EO 20-54 prohibits employers from discriminating or retaliating against any worker for doing any of the following:

  1. Communicating orally or in writing with management personnel about occupational safety or health matters related to COVID-19, including asking questions or expressing concerns.
  2. Wearing gloves, cloth face coverings or other protective items that the worker has personally procured and reasonably believes will protect them, their co-workers, or the public against COVID-19 during the course of their work, provided that such items do not violate industry standards or company policies relating to health, safety, or decency.
  3. Refusing to work under conditions that they reasonably believe, in good faith, to present an imminent danger of death or serious physical harm. 
  4. Requesting that the Department of Labor and Industries conduct an inspection of their workplace if they believe there has been a violation of a safety or health standard or that imminent danger exists.

Employers need to be alert to these issues to avoid retaliation claims. Their appropriate responses will be key to defending such claims. 

The above-described four new Executive Orders present a host of new issues for reopening businesses to consider, and preparing a COVID-19 Preparedness Plan can feel like a daunting task if you don’t know where to start. FMJ’s HR & Employment group can help you navigate these issues and discuss how to safely bring your employee back to the workplace. If you are interested in learning more, please contact Shannon McDonough at shannon.mcdonough@fmjlaw.comNatolie Hochhausen at natolie.hochhausen@fmjlaw.com, or Schaan Barth at schaan.barth@fmjlaw.com in FMJ’s HR & Employment practice group.