On April 8, Governor Walz issued Executive Order 20-33 extending the stay at home period that was put in place by Executive Order 20-20 to 11:59 p.m. on May 3, 2020.  Executive Order 20-33 and the guidance issued by the Minnesota Department of Employment and Economic Development (DEED) contain some notable changes from the prior Order, which has been rescinded.

The exceptions for certain personal activities identified (e.g., shopping for food and supplies, seeking medical help and caring for others) remain largely unchanged from prior Order with a few notable additions:  (1) travel to purchase materials to make homemade personal protective equipment; (2) voting; (3) moving to a new residence; and (4) attending funerals so long as there are no more than 10 attendees.  As before, when engaging in any of the exempt personal activities, Minnesotans must follow the Minnesota Department of Health Guidelines to the maximum extent possible, including maintaining proper social distancing.

Like the prior Order, Executive Order 20-33 contains an exemption for “Critical Sector Work,” but DEED’s guidance has removed one of the primary three means of determining whether your business is in a Critical Sector—the use of the NAICS codes.   Businesses now need to look to the following two resources to determine whether they perform Critical Sector work:

  1. U.S. Dept. of Homeland Security’s Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response
  2. Governor’s Executive Order 20-33

While the NAICS Codes are no longer used to determine whether an industry constitutes Critical Sector work, Executive Order 20-33 expanded the list of workers performing Critical Sector work.  The most notable addition is the exemption for workers supporting “minimum basic operations” of a business, which are defined as: “(1) minimum necessary activities to maintain the value of the business’ inventory, preserve the condition of a business’s or other organization’s facilities, physical plant, or equipment, ensure security, process payroll and employee benefits, or for related functions; and (2) minimum necessary activities to facilitate remote work by workers from their residences (e.g., IT personnel who allow employees to operate remotely and personnel who support remote or distance learning).”

Executive Order 20-33 also specifically identifies some workers who are NOT exempt from its scope, namely: (1) workers in adult daycares; (2) workers supporting tobacco, vaping or CBD oil shops; (3) ordinary residential housecleaning of individual homes or apartments; and (4) pet groomers; and (5) arts and craft store workers, except to the extent they are distributing materials to make personal protective equipment (e.g., homemade facemasks).  DEED’s Critical Sector Modifications Summary, provides a summary of the other changes.

Finally, Executive Order 20-33 expanded the definition of “workers” and “personnel” to include owners, proprietors, employees, and interns in addition to employees, contractors, vendors, and volunteers.

As before, just because your business fits within one of the Critical Sector categories does not automatically exempt your employees from the Order.  Executive Order 20-33 requires all employees who can work from home to do so, even if they are eligible for a Critical Sector worker exemption.  The Critical Sectors exemptions apply only to travel to and from an individual’s home or residence and place of work and an individual’s performance of work duties that cannot be done at their home or residence. Travel may also include transportation to and from child care or school settings as necessary to ensure the safe care of children. DEED has again stated that you and your employees are not required to carry any paperwork when you are traveling to and from your place of employment or anywhere else.

For questions or assistance, please contact any of our Partners listed below:

Harry E. Gallaher
Partner
hegallaher@locklaw.com
(612) 596-4039

Susan E. Ellingstad
Partner
seellingstad@locklaw.com
(612) 596-4074

David W. Asp
Partner
dwasp@locklaw.com
(612) 596-4091