Minnesota’s stay at home order and social distancing measures have helped slow the spread of COVID-19 across the state. Recognizing the economic impact of these life-saving measures, especially for employees in non-critical sectors or without the ability to work from home, Governor Walz issued Executive Order 20-40, effective April 27, 2020, as a first step in the gradual process of reopening Minnesota businesses. EO 20-40 allowed some non-critical sector businesses to reopen beginning April 27, 2020, after these businesses planned for and provided a safe working environment. Executive Order 20-48, effective May 4, 2020, extended the stay at home order, but allows the non-critical industrial and office-based businesses included in EO 20-40 to stay open or reopen and allows certain retail businesses to reopen provided these businesses follow the health and safety guidelines and requirements.

This Alert provides a summary of these Executive Orders and guidance from several state and federal agencies on safely returning to work amid the COVID-19 pandemic.

NOTE: The information in this Alert is current as of May 4, 2020 at 5 pm Central Time. This is a rapidly-evolving situation and circumstances and guidance may change.

WHICH EMPLOYERS ARE ALLOWED TO REOPEN?

Recognizing that safely reopening Minnesota businesses will take time and monitoring, and that some business environments are more conducive to health and safety practices, EO 20-40 allowed certain non-critical sector industrial and office-based businesses to go back to work as long as these businesses did not directly interact with customers or the general public in their facilities. EO 20-48 maintains this and also allows retail businesses to operate if goods can be acquired without entering the place of business, such as with curb-side pickup. For the latest guidance on which businesses may reopen, see the Minnesota Department of Employment and Economic Development’s (DEED) “Guidance on Reopening Businesses”.

Non-critical businesses allowed to reopen include:

  • Industrial and manufacturing businesses, including wholesale trade, warehousing, and places of employment in which goods are in the process of being created. The Department of Labor and Industry (DLI) lists examples including agriculture, forestry, fishing, hunting, mining, construction, utilities and manufacturing.
  • Office-based businesses that are primarily not customer-facing where work is done within an office space primarily at desks.
  • Retail stores and other businesses that are customer-facing and that sell, rent, maintain, and repair goods can engage in curbside or outside pick-up and delivery as long as customers are not entering the business premises. This includes pet grooming, repair services, household goods rental, maintenance services. Note that in order to provide delivery, the business must have provided delivery service pre-pandemic.

This does not include:

  • Customer-facing retail environments associated with industrial and manufacturing businesses.
  • Customer-facing retail environments associated with office-based businesses.
  • Services in salons and barbershops. Salons and barbershops may only engage in pick-up or delivery retail product sales as outlined above and are not allowed to provide any services.
  • Employees who are able to work from home – employees who can work from home must continue to do so and employers should encourage teleworking as much as possible.

See EO 20-48, the DEED’s Guidance on Reopening Businesses and the DEED’s FAQ’s regarding safely returning to work for more information.

WHAT CONDITIONS MUST EMPLOYERS MEET TO REOPEN?

These included businesses are allowed to reopen provided they are in compliance with the requirements of EO 20-48. All businesses permitted to reopen must:

  • Develop and implement a written COVID-19 Preparedness Plan (the “Plan”) for each work place.
  • Follow the health and safety protocols of EO 20-48, which include conducting daily health screenings of employees.
  • Require work from home whenever possible, and should continue to work from home if already doing so.

COVID-19 PREPAREDNESS PLAN

As outlined in EO 20-48, a business’s COVID-19 Preparedness Plan must meet the following requirements, which will be addressed in turn below:

  • Required Plan Content
    • Require work from home whenever possible
    • Ensure that sick workers stay home
    • Social Distancing
    • Employee hygiene and source control
    • Cleaning and disinfection protocols
  • Optional template covering the above requirements (linked below)
  • Certification and signature by senior management affirming commitment to implementing and following plan
  • Dissemination and posting
  • Training
  • Compliance
  • Availability to regulatory authorities and public safety officers
COVID-19 Preparedness

The Plan must also meet OSHA Standards related to workers exposed to COVID-19 and implement the guidelines from the Centers for Disease Control (CDC) and Minnesota Department of Health (MDH). An “Employer Preparedness Plan requirements checklist” and template “COVID-19 Preparedness Plan” are available to help businesses create a Plan that, at a minimum, contains the required core components. Businesses are not required to use the provided template, but adapting the provided template to fit the intricacies of the applicable business ensures that the Plan is compliant and effective. The Plan template includes links to relevant guidance for each core component of the plan, such as guidance on social distancing and housekeeping measures. These resources can be accessed here:

As listed in the Plan template, the Plan content should address the following key components:

  • Hygiene and respiratory etiquette;
  • Engineering and administrative controls for social distancing;
  • Housekeeping – cleaning, disinfecting and decontamination;
  • Prompt identification and isolation of sick persons;
  • Communications and training that will be provided to managers and workers; and
  • Management and supervision necessary to ensure effective implementation of the plan.

Minnesota OSHA is available to help businesses with questions about creating a Plan and compliance with applicable guidelines at MNOSHA Workplace Safety Consultation at 651-284-5060 or [email protected].

Implementation

Business senior management is responsible for implementing the Plan and must sign and certify it. This certification affirms that management is committed to implementing and following the plan.

Although the Plan does not need preapproval from any state agency, it must be available upon request by agencies including the DLI. The DLI has authority to determine whether the Plan is adequate, and to issue citations, civil penalties, and closure orders for non-compliant and unsafe businesses

Dissemination And Posting

The Plan must be implemented by management and must be provided to and reviewed by all workers. The Plan must be posted in all physical locations to be viewable by all workers. If a businesses is not able to post physical copies of the Plan or posting the Plan in certain locations is impractical, the Plan can be posted electronically if it is received by all workers and is available for them to review.

Training

Businesses must provide training related to the content and procedures in the business’s Plan. Businesses should also ensure that workers understand the requirement of the Plan and that all workers are able to follow and implement the required policies and procedures. Businesses must also provide adequate guidance and supervision. These training efforts must be documented and made available upon request by the DLI or other authorities.

Compliance And Enforcement

The Executive Orders designate authority to the DLI to evaluate the adequacy of a COVID-19 Preparedness Plan. As noted above, the Plan does not require preapproval from any state agency, but the plan must be made available upon request by the relevant authorities. Businesses should be diligent in documenting the implementation, dissemination, training, and compliance related to their Plan. Businesses may not be permitted to reopen or may be prohibited from continuing operations if they are found to be non-compliant with the CDC and MDH guidelines and OSHA requirements.

DAILY HEALTH SCREENINGS

Businesses must perform health screenings each day when employees enter the workplace to prevent sick workers from entering. The protocol for these screenings, including how reporting and isolating will take place, should be described and implemented in the Plan. Employers must be sure to comply with the ADA, the Rehabilitation Act, and Other Equal Employment Opportunity laws and maintain all data collected as protected under the ADA. Employers may disclose the name of employees with COVID-19 to public health agencies. See the U.S. Equal Employment Opportunity Commission’s “What you Should Know” for guidance and answers to FAQs.

Employers should ask and document answers to these questions related to symptoms of the COVID-19 virus. If employees answer yes to any of these questions, they should be asked to leave immediately:

  • A new fever (100.4°F or higher), or a sense of having a fever?
  • A new cough that you cannot attribute to another health condition?
  • New shortness of breath that you cannot attribute to another health condition?
  • A new sore throat that you cannot attribute to another health condition?
  • New muscle aches that you cannot attribute to another health condition or a specific activity (such as physical exercise)?

MN Symptom Screener, a web-based health-screening and temperature tracking tool developed by Target and hosted by the Minnesota Safety Council, is now available at no cost to businesses. This tool can collect non-personal health information to help businesses make the required health screenings more effective and actionable. Target is also offering to Minnesota businesses a number of no-touch infrared forehead thermometers at cost here.

Employers are allowed but not required to take employees’ body temperatures according to the EEOC. The DEED advises businesses to be aware that not all people with COVID-19 have a fever.

This information is meant as a general guide to safely returning to work. We continue to monitor the situation and will update our Alert as additional guidance and resources become available. Please contact us for questions or specific guidance on implementing these requirements.

May 5, 2020