On March 25, Governor Walz issued Executive Order 20-20 ordering all Minnesotans to stay in their homes until April 10, 2020. There are exceptions for certain personal activities identified in the Order (shopping for food and supplies, seeking medical help and caring for others among others). In addition, there is an exemption for “Critical Sector Work.”

To determine whether your business fits within this exception and whether any of your employees qualify as “Critical Workers,” businesses need to look to the following three resources:

  1. U.S. Dept. of Homeland Security’s Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response
  2. Governor’s Executive Order
  3. List of NAICS Codes determined to be critical industries

If your business clearly meets the definition of a critical industry in one of the resources above, then some of your employees may be eligible to qualify as “Critical Workers.” Just because your business fits within one of the three categories does not automatically exempt your employees from the Order.

The Critical Sectors Exemption in the Order provides that:

All workers who can work from home must do so. Workers in the following Critical Sectors, who are performing work that cannot be done at their home or residence through telework or virtual work and can be done only at a place of work outside of their home or residence, are exempted from the prohibition in paragraph 1 as set forth below. These critical services 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 homes or residence. Travel may include transportation to and from child care or school settings as necessary to ensure the safe care of children. This list of Critical Sectors may be clarified, as deemed necessary by the Governor, to ensure the health, safety, and security of all Minnesotans. Clarifications will be available for public review at: http://mn.gov/deed/critical/

The Department of Employment and Economic Development (DEED) is continuing to clarify the list of Critical Sectors and who is a Critical Worker. As of March 26, the latest guidance is that: “If an employee qualifies for a Critical Worker exemption based on the (1) CISA Guidance, (2) Executive Order 20-20, or (3) the NAICS industry code list, and they cannot work from home, then they can leave home to work.” DEED’s guidance reiterates that “all employees who can work from home to do so, even if they are eligible for a Critical Sector worker exemption.”

A frequent question about the Order is whether employees need credentials or a letter from their employer in order to travel to and from work. During a Q&A session, DEED Commissioner Steve Grove, answered “No,” businesses do not need to issue credentials or letters to their employees. If you have questions about whether your business and employees are exempt from the Order, please contact us. We are continuing to monitor this ever-changing situation so we can advise you on how best to comply with the Order.

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