On March 24, 2020, Governor Whitmer’s stay‑home Executive Order (EO) took effect. EO 2020‑21 contains a number of exceptions that allow certain individuals to travel, as necessary. It also requires businesses and other operations to provide written designation relative to critical infrastructure employees and employees who conduct minimum basic operations, if those essential employees will be traveling to work. The written designation must be made by March 31, 2020.
So, are school districts required to meet this requirement? Generally, no, as long as specific exception requirements are met. The reason for that answer requires review of various sections from the EO – not a simple task, as the sections cross‑reference each other in multiple instances.
The key sections of the EO are sections 4‑7. Section 7 provides exceptions to the stay‑home order. The exceptions relevant to school districts are as follows:
- Critical infrastructure workers (the EO provides that those designated under section 5(a) need not be designated)
- Employees that conduct minimum basic operations as described in section 4(b) (generally, after being designated by their employers)
- Employees that perform necessary government activities, as described in section 6
The exceptions raise three questions: first, who are “critical infrastructure workers?” Second, what are “minimum basic operations?” Finally, what are “necessary government activities?”
Critical infrastructure workers are those described by the Director of the U.S. Cybersecurity and Infrastructure Agency in his March 19, 2020 guidance. As an initial matter, the guidance includes “[e]ducators supporting . . . K‑12 schools . . . for purposes of facilitating distance learning or performing other essential functions, if operating under rules for social distancing.” In other words, school employees supporting distance learning or other essential school district functions are critical infrastructure workers. The guidance describes numerous other personnel – not generally related to education – who are critical infrastructure workers. Normally, critical infrastructure workers must be designated, in writing, by March 31, 2020.
However, EO 2020‑21 also provides that such workers need not be designated if they perform necessary government activities, as described in section 6. Section 6(a) provides that “necessary government activities include activities performed by critical infrastructure workers.” Thus, the critical infrastructure workers described in the preceding paragraph need not be designated in writing.
Moreover, Section 6(c) provides that “necessary government activities include minimum basic operations, as described in section 4(b). Workers performing such activities need not be designated.” Workers are necessary to perform minimum basic operations where their in‑person presence is necessary to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
The cross‑referencing and overlapping provisions of EO 2020‑21 are confusing. The key takeaway from the EO is this: most school district employees who are essential to school operations (e.g., maintaining inventory and equipment, ensuring security, processing payroll, etc.) and need to be physically present to fulfill those tasks do not need to be designated in writing at all, let alone by March 31, 2020.
At the same time, the above analysis demonstrates that the EO is a dense, complicated document. School districts should not anticipate that the law enforcement officers and other government officials enforcing the EO will have a complete understanding of what the law requires. Therefore, while there is no obligation to designate EO‑exempt employees in writing, we strongly suggest that school districts should implement the following measures:
- First, school districts should post on their websites the names of personnel who are considered workers performing necessary government activities (i.e., “essential” employees).
- Second, school districts should provide those personnel with a written letter providing that the worker is exempt from the EO because the worker is performing necessary government activities. While the letter need not be highly‑detailed, it should contain the telephone number for the administrator who signed the letter. If the school district has listed the worker’s name on the district’s website, the letter should also contain the URL for the website.
Ultimately, while the above measures are not strictly required, districts employing same will better protect their employees from the potential misunderstandings that are more likely to occur during this period of uncertainty. Administrators who are uncertain whether a specific employee falls under the exceptions in the EO should contact legal counsel.