Member Article

On March 23, 2020, in order to curb the spread of COVID-19 in Michigan, Governor Whitmer issued Executive Order 2020-21 (“EO 2020-21”), which orders all Michigan residents to stay at home or in their place of residence unless exempted until April 13, 2020, at 11:59 p.m. To this end, EO 2020-21 also orders that no person or entity may conduct a business or conduct operations that require workers to leave their homes or residences unless that entity qualifies for an exemption. The issuance of EO 2020-21 poses several questions, such as what activities are prohibited, how long it will be in effect, how it restricts companies in the energy industry, and much more.

What activities are prohibited?

All public and private gatherings of any number of people outside of a single household are prohibited. Individuals may leave their homes for certain, limited reasons. Permissible reasons include: to leave as necessary for their health and safety (e.g., to seek medical or dental care), to obtain necessary supplies and services, to engage in outdoor activity, to work as a critical infrastructure worker, to conduct minimum basic operations (described below), to care for family members or vulnerable persons, to attend legal proceedings, or to work or volunteer for certain businesses or operations. When outside their homes, individuals must remain six or more feet from individuals other than household members.

Can energy companies continue in-person operations?

Yes, but there are certain restrictions (see below). Workers in the energy sector are specifically included in EO 2020-21 as “critical infrastructure workers.”[1]

What restrictions are in place?

Even though businesses in the energy sector may continue in-person operations, EO 2020-21 states that any in-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume. In addition, energy sector companies must also do the following:

• Designate your “critical infrastructure workers” and inform them as required;
  
  
• Restrict the number of workers on premises to those strictly necessary;
  
  
• Promote remote work to the extent possible;
  
  
• Enforce social distancing to the extent possible (e.g., keep everyone at least six feet away from each other);
  
  
• Increase cleaning standards and disinfecting protocols and adopt protocols for cleaning and disinfecting in the event of a positive COVID-19 case in the workplace;
  
  
• Adopt policies to prevent workers from entering your premises if they display any respiratory symptoms or have had contact with someone who is known or suspected to have COVID-19; and
  
  
• Adopt any other social distancing practices and mitigation measures recommended by the Centers for Disease Control and Prevention.
  
  

In short, even energy companies should be reducing the number of in-person workers they are having come into their facilities or conducting their business to only those absolutely necessary.

What if your business relies on suppliers, distribution centers, or service providers that are not authorized to continue in-person operations?

A business or operation that employs critical infrastructure workers—like an energy company—may designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of that business’s critical infrastructure workers. Those designated suppliers, distribution centers, or service providers may designate workers as “critical infrastructure workers” only to the extent those workers are necessary to enable, support, or facilitate the original operation’s critical infrastructure workers. The designated supplier, distribution center, or service provider may, in turn, designate additional suppliers, distribution centers, or service providers necessary to enable, support, or facilitate their critical infrastructure workers.

Businesses, operations, suppliers, distribution centers, and service providers must make all designations in writing to the entities they are designating. Although EO 2020-21 permits such designations to be made orally until March 31, 2020, at 11:59 p.m., best practice would be to provide such designation in writing.

EO 2020-21 also states that any abuse of these designations is subject to sanctions to the fullest extent of the law.

How else does EO 2020-21 impact the energy sector specifically?

EO 2020-21 suspends all in-person government activities at all levels of government in the state (i.e., state, local, or county) that are not necessary to sustain or protect life or to support businesses and operations that are necessary to sustain or protect life. Thus, the normal operations of many governmental agencies and departments may be impacted and may be slower to respond to inquiries, requests, or filings from energy companies.

How long are these restrictions in place?

EO 2020-21 is effective March 24, 2020, at 12:01 a.m. until April 13, 2020, at 11:59 p.m. Governor Whitmer will continue to evaluate the need for this order prior to its expiration and may modify it as needed.

A full copy of EO 2020-21 can be found here.