Yesterday afternoon, Governor Walz announced the issuance of Executive Order 20-40 (“Order”), which will allow many employers in non-critical sectors to reopen their business and bring employees back to work as early as Monday, April 27, 2020, subject to certain conditions. This announcement, while welcome news to businesses that have suffered economically due to mandatory closure under the Governor’s previous executive orders, also brings significant challenges as employers now scramble to prepare their workplace for reopening in the middle of the COVID-19 public health emergency.
There are four critical steps to consider and satisfy before any business should reopen. First, businesses must determine whether its business is eligible for reopening under the Order. At this time, only businesses that are defined in the Order as “Non-Critical Exempt Businesses” are permitted to reopen. This generally includes businesses: (a) in the industrial and manufacturing industries, such as wholesale trade, warehousing, and goods-producing businesses; and (b) office-based businesses where work is performed at desks in an office setting, primarily without customer interaction. For avoidance of doubt, Non-Critical Exempt Businesses do not include customer-facing retail aspects of an office-based business. Guidance on determining whether a business falls under one of these categories can be found on the MN Department of Employment and Economic Development’s website.
Businesses should be aware, however, that making this determination is just the first step. Before it will be permitted to reopen, a Non-Critical Exempt Business must, secondly, create an appropriate COVID-19 Preparedness Plan that, at a minimum:
- Requires any workers who can work remotely to continue to do so;
- Contains policies and procedures designed to detect and prevent sick workers from entering the workplace, including health screenings;
- Establishes social distancing policies and procedures in the workplace;
- Establishes employee hygiene and source control policies for workers; and
- Includes cleaning and disinfecting protocols for workstations and other workplace areas.
Third, the Order also outlines several additional actions that must be taken with respect to certifying, circulating and implementing a business’s COVID-19 Preparedness Plan. These actions include, without limitation, obtaining senior management certification, posting the plan in the workplace and disseminating it to workers, providing appropriate training on the new policies and procedures, establishing a framework for ensuring compliance, and making the plan available to regulatory authorities if required.
Fourth, there are several additional important considerations that arise out of the Order but are not addressed in the Order, such as compliance with other federal and state employment laws that will apply to any COVID-19 Preparedness Plan. Just as an example, while the Order requires these plans to include regular health screenings for workers, keep in mind that checking employee temperatures and asking about illness symptoms are generally considered medical inquiries and/or examinations under the Americans with Disabilities Act (“ADA”). For that reason, those measures must also be carefully considered and implemented in order to ensure that ADA guidelines are followed at all times.
We understand that there is still a lot to wade through to fully understand and comply with the Order’s requirements and other applicable employment laws in order to implement a well-crafted COVID-19 Preparedness Plan. This article provides a basic summary of the Order and fundamental steps to help serve as a starting point. The attorneys in FMJ’s HR & Employment practice group are available to assist businesses in creating their plans and following the above four steps in order to get their businesses properly positioned to reopen.
If you have questions about this Order, or if your business needs assistance with preparing to resume operations, please contact Shannon McDonough (shannon.mcdonough@fmjlaw.com) or Natolie Hochhausen (natolie.hochhausen@fmjlaw.com) in FMJ’s HR & Employment group. More information about HR & Employment group is here.
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