Governor Tim Walz issued Emergency Executive Order 20-2020 on March 25, 2020 aimed at containing the spread of COVID-19 that requires all individuals currently living in Minnesota to generally stay at home from Friday, March 27, 2020 at 11:59 p.m. to Friday, April 10, 2020 at 5 p.m. More employment-related details of the order are described below.
1. When can an individual leave home to work?
Related to employment, individuals are not permitted to leave their residences for work unless the individual is each of the following:
- A Critical Sector worker based primarily on the definitions in U.S. Department of Homeland Security’s Guidance on the Essential Critical Infrastructure Workforce (“CISA Guidance”), which also included as an attachment in Gov. Walz’s order, and some additional definitions;
- Performing work that cannot be done at their home or residence and can be done only at a place of work outside of their home or residence; and
- Traveling to and from an individual’s home or residence and place of work, which includes transportation to and from child care or school settings as necessary to ensure the safe care of children.
Accordingly, public employers cannot require an employee to report to work unless the above conditions are met.
2. Who is a critical sector employee?
The order contains a long list detailing which employees are Critical Sector (a.k.a., essential) workers. The list includes, but is not limited to, the following 10 categories of employees with certain clarifications that extensively impact cities:
- Health care and public health
- Law enforcement, public safety, and first responders
- This includes animal control officers
- This does not expressly include support workers
- Food and agriculture
- This includes workers supporting retail that sells alcoholic beverages
- This includes electric and natural gas workers
- Water and wastewater
- This only includes, in relevant part, employees needed to operate and maintain drinking water and wastewater/drainage infrastructure
- Transportation and logistics
- This includes all employees supporting or enabling transportation functions
- Public works workers
- This only includes:
- Workers who support the operation, inspection, and maintenance of essential dams, locks and levees
- Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues
- Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences
- Support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications
- Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste
- This only includes:
- Communications and information technology
- Financial Services
- This includes workers who are needed to process and maintain systems for processing financial transactions and services and who support financial operations
- Other community-based government operations and essential functions
- This includes workers to ensure continuity of building functions
- This also includes workers who support the following functions and services:
- Election support services and election administration workers
- Local agencies and organizations related to housing, shelter, and homelessness-prevention, including state and local agencies with responsibility for ensuring safe and stable housing. This includes workers necessary to provide repairs, maintenance, and operations support to residential dwellings.
- Workers performing all other governmental functions which are necessary to ensure the health, safety, and welfare of the public, to preserve the essential elements of the financial system of government, and to continue priority services as determined by a political subdivision of the State. All political subdivisions of the State will determine the minimum personnel necessary to maintain these governmental operations.
- Workers supporting building code enforcement necessary to maintain public safety and health of essential infrastructure and any construction as required in response to the COVID-19 peacetime emergency including but not limited to construction of health care facilities and essential businesses and services, or construction as required for emergency repairs and safety purposes.
The State of Minnesota will be continually clarifying what constitutes Critical Sector work here.
Even if an individual is a critical sector employee, the order specifies that such individual may only travel to work if the work they are doing cannot be done at home and must be done at work.
3. What is required of public employers?
The only specific directive for employers is to ensure all work performed should, to the maximum extent possible, be conducted in a manner that adheres to Minnesota Occupational Safety and Health Standards and the Minnesota Department of Health and CDC Guidelines related to COVID-19, including social distancing and hygiene.
To comply with the order, however, public employers should document (likely in chart form):
- The critical sector work it performs using the categories above as a guide likely broken down by department, division, section, or unit performing the work
- The job titles and name of staff that perform the work
- The minimum staffing and work hours required to perform such work
- Staff that should not report to work at all during the stay-at-home order timeframe or work a modified schedule and whether they should be able to telework to perform certain work
4. What should public employers do with nonessential employees?
Cities have a few options when considering what to do with employees that are not Critical Sector (a.k.a., nonessential) workers, especially nonunionized employees. If an employee is unionized, a city should first consider whether the option it chooses to pursue is a management right, or whether the city is first required to meet and negotiate with an exclusive representative of the employee. More details and tools to use related to options for handling such employees is included in CGMC’s Employment Actions and Tools to Address COVID-19 Impacts on Work. The relevant options include:
- Telework – Cities may want to consider expanding temporary telecommuting or working remotely for these employees. Before pursuing this action, cities should establish written guidelines addressing employees that may be eligible, parameters of when work can be performed, appropriate retention and safeguarding of data, and expense reimbursement or not.
- Reduce Work Schedule – Cities can consider scheduling employees for less hours of work to solely perform Critical Sector work.
- Furlough – A furlough refers generally to a short period of time where an employee works no hours for the employer yet remains employed.
- Layoff – Unlike a furlough, a layoff separates an individual from employment with the city.
Related to paying employees for a reduced schedule or no work at all, cities can either not pay the employees for time not worked, place employees on administrative leave with pay for time not worked that they would otherwise normally work, or allow employees to use accrued paid leave and/or use time before it is accrued that is later deducted from future time accrued for time not worked that they would otherwise normally work. However, cities must be cognizant of a qualified employee’s right to receive Family and Medical Leave Act (FMLA) leave or leave as provided under the Families First Coronavirus Response Act (FFCRA) as detailed here.
More information on pandemic planning is included in following CGMC documents:
- 5 Steps to Handling a Pandemic in Minnesota Government Workplaces
- Federal government enacts employee leave laws in response to COVID-19
- Employment Actions and Tools to Address COVID-19 Impacts on Work
If you need any assistance on handling a pandemic in the workplace or any other labor employment advice, please contact labor and employment attorneys Brandon M. Fitzsimmons (firstname.lastname@example.org) or Chelsea J. Bodin (email@example.com) of Flaherty & Hood, P.A.