On April 23, 2020, Governor Tim Walz signed Emergency Executive Order 20-40 (Order) permitting workers in limited Non-Critical Exempt Businesses to return to work. The Order is meant to be a cautious next step in allowing Non-Critical Sector Employees to return to work following the Governor’s stay-at-home order of March 25, 2020 and does not impact the requirements for Critical Sector Workers. Specific employment-related details of the Order are described below.

I. When can an individual leave home to work?

The Order allows a worker to return to work if each of the following are true:

  1. The worker is 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.
  2. The worker is 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.
  3. The worker’s place of work is the following Non-Critical Exempt Businesses applicable to public employers: office-based businesses, including office-based businesses where workers do their work within an office space, at their desk, and their work is primarily not customer facing. Customer-facing retail environments associated with these businesses are not included. Additional guidance related to business in this category is provided at https://mn.gov/deed/safework/.
  4. The Non-Critical Exempt Business at which the worker works has established and implemented a detailed COVID-19 Preparedness Plan (Plan) pursuant to the requirements available at https://mn.gov/deed/safework/. A template plan customized for public entities is available HERE. This template is derived from the State template COVID-19 Preparedness Plan available at https://mn.gov/deed/safework/.

Public employers should ensure that various areas of the employer draft and submit to employees specific actions it is taking that are more detailed than the overall plan related to these items.

At a minimum, each Plan must comply with the following:

  • Topics. The plan must address the following:
    • Require work from home whenever possible.
    • Ensure that sick workers stay home. (A template notice and consent to obtain information to screen employees for COVID-19 symptoms is available HERE.)
    • Social distancing.
    • Employee hygiene and source control.
    • Cleaning and disinfection protocols.
  • Certification and Signature. Senior management must affirm its commitment to implementing its business’ Plan by signing and certifying its Plan.
  • Training. A Non-Critical Exempt Business must provide training to its workers on the contents its Plan. The training should be conducted in the appropriate language and easily understood by workers at all literacy levels. A business should ensure workers understand and adhere to the Plan. A business must document its compliance with this training requirement, maintain that documentation, and make that documentation available to regulatory authorities upon request.
  • Compliance. Workers and management are required to work together to ensure compliance with the Plan, implement all protocols, policies, and procedures, and create a safe and healthy work environment.
  • Availability to regulatory authorities and public safety officers. Non-Critical Exempt Businesses do not need to have their Plans preapproved, but must make their Plans available upon request to regulatory authorities and public safety officers.

Pursuant to the Governor’s previous orders, a worker may also return to work if:

  1. The worker is 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
  2. The worker is 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, and
  3. The worker falls under one of the exemptions set forth in Executive Order 20-33.

Accordingly, public employers cannot require an employee to report to work unless the above conditions are met.

II. Who is a worker?

The Order broadly defines “workers” and “personnel” to include owners, proprietors, employees, contractors, vendors, volunteers, and interns.

III. What workplace conduct is appropriate?

The Minnesota Department of Employment and Economic Development (DEED) has issued guidance clarifying what workplace conduct is appropriate for employees who return to work under the Order:

  • Employees may:
    • Interact with co-workers while maintaining social distancing.
    • Conduct virtual meetings.
    • Work at workstations as long as there is adequate space between workers.
    • Follow the employer’s plan for social distancing.
  • Employee’s may not:
    • Conduct customer visits in customer workplaces or homes.
    • Invite customers into the workplace.
    • Conduct meeting in conference rooms that don’t allow social distancing.
    • Work right next to co-workers.

 IV. What is required of public employers?

In addition to complying fully with the requirements listed above in I.4., a public employer that may be categorized in full or in part as a Non-Critical Exempt Business must conduct all exempted work in a manner that adheres to Minnesota Occupational Safety and Health Act Standards and Minnesota Department of Health and Center for Disease Control Guidelines. These guidelines specifically include implementation of social distancing and hygiene practices.

DEED has clarified that although an employer may qualify as a Non-Critical Exempt Business, the employer may need to change its normal practices if its normal practices don’t allow for social distancing.

The Order makes clear that the Minnesota Department of Labor and Industry (DLI) may issue citations, civil penalties, or closure orders to places of employment with unsafe or unhealthy conditions. Public employers that retaliate against employees who raise safety and health concerns, may also be penalized by the DLI. 

More information on pandemic planning is included in the Coalition of Greater Minnesota Cities’ documents which are available here:

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 Fitzsimmons (bmfitzsimmons@flaherty-hood.com) or Chelsea Bodin (cjbodin@flaherty-hood.com) of Flaherty & Hood, P.A.