Minnesota Cautiously Moves Forward: Extending Stay-At-Home Order While Allowing Certain Additional Businesses to Reopen

UPDATE: As noted in a previous legal alert, Minnesota Eases Some Restrictions and Provides Indication of the Path to Reopening the Economy During COVID-19 Crisis , Minnesota is in the process of easing certain stay-at-home restrictions as it attempts to re-open its economy. On April 23, 2020, Governor Walz issued Executive Order 20-40 allowing certain Non-Critical Sector workers in offices, industrial, and manufacturing businesses who were non-customer facing to return to work under the condition that employers create plans for and provide a safe work environment.

Today, Governor Walz announced that he was signing Executive Order 20-48 (the “Order”). The Order technically rescinds Executive Orders 20-33, 20-38, 20-40, and 20-47 as of Sunday, May 3, 2020, at 11:59 p.m., at which time the Order goes into effect. Notwithstanding the rescission of these prior orders, the Order effectively restates the substance of Orders 20-33, 20-38, 20-40, and 20-47 but with some additional clarifications and expansion of Non-Critical Exempt Businesses. Non-Critical Exempt Businesses now include various retail businesses, in addition to industrial, manufacturing, and office-based businesses previously allowed to open on April 27, 2020, subject to certain limitations. The Order references and explicitly notes that it relies on the updated U.S. Department of Homeland Security’s “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response, Version 3.0 (“CISA Guidance 3.0”—attached to the Order).

Retail businesses are permitted only to reopen for curbside pick-up or delivery and include those businesses that provide home goods rental, maintenance services, repair services, and pet grooming to the extent that they can adhere to Preparedness Plan guidelines. Salons and barbershops are included only to conduct retail product sales and may not provide any customer services.

As set forth previously in Executive Order 20-40, and analyzed in a previous legal alert, New Executive Orders Signed by Governor Walz as Minnesota Continues Down the Path of Re-Opening Its Economy, each Non-Critical Exempt Business must create, implement, and publicly post a COVID-19 Preparedness Plan. 

At a minimum, each COVID-19 Preparedness Plan must address the following:

• Require work from home whenever possible.
• Ensure that sick workers stay home.
• Establish social distancing policies and procedures.
• Establish hygiene and source control policies for workers.
• Establish cleaning and disinfection protocols.

In addition to developing and implementing this Preparedness Plan, the Order requires that retail businesses now permitted to open must offer curbside pick-up starting on May 4, 2020, must use online payment whenever possible, and require employees (and advise customers) to wear masks and protective equipment. That said, customers are not to enter a business under any circumstances. If utilizing curbside pick-up, social distancing guidelines still apply and, if possible, customers should not be required to leave their vehicle. If utilizing delivery services, a delivery person should not enter a person’s home. Delivery items should be left outside a customer’s residence and any interaction with customers should be limited and follow social distancing guidelines.

Those individuals who can work at home are still required to do so. Further, the Order also encourages all Minnesotans to wear a cloth covering at all times when leaving the home and to travel to any public setting where social distancing measures are difficult to maintain. As has been the policy, Minnesotans are also advised to continue to telework whenever possible, screen for symptoms, regularly check their temperature, and maintain physical distance from each other.

The Order also adds to the list of outdoor recreational activities that were earlier permitted by Executive Order 20-38 and analyzed in a previous legal alert, New Executive Orders Signed by Governor Walz as Minnesota Continues Down the Path of Re-Opening Its Economy. These additions include the reopening of ski areas and outdoor recreational equipment rental outlets if operated for the purposes of renting out equipment that can be effectively sanitized between uses.

The Order reiterates that large group gatherings, in-person worship, youth sports and camps, large weddings, graduations, and funerals, and routine dental care will not be allowed to reopen for the time being. However, it specifically provides for weddings and funerals if the gathering does not exceed 10 attendees and the space utilized allows for social distancing.

Governor Walz stressed during the April 30, 2020 press conference discussing the Order that the extension of the stay-at-home guidance is necessary to continue preparing for the inevitable peak of COVID-19 cases in Minnesota. Nonetheless, it is estimated that under the new restrictions up to 30,000 Minnesotans will be able to go back to work. Further, Governor Walz indicated that he anticipates there will be additional easing prior to the expiration of the Order on May 18. Governor Walz has stated that one such easing measure may include lifting the ban on elective surgeries, which currently remains in place.