Published in Small Business

Lack of clarity in Whitmer’s stay-home order frustrates small businesses

BY Thursday, March 26, 2020 05:05am

Leaders of the Small Business Association of Michigan voiced frustration Wednesday with what they consider a lack of clarity on what businesses can stay open under the governor’s stay-home order this week, as well as how it gets enforced.

Questions to the small business trade group “just continue to pour in” about who qualifies as an essential business that can stay open under Gov. Gretchen Whitmer’s executive order, CEO Rob Fowler said.

SBAM CEO Rob Fowler (left), SBAM president Brian Calley (right) COURTESY PHOTOS

In SBAM’s daily briefing on issues surrounding the COVID-19 pandemic, President Brian Calley said a state FAQ website has had a few updates in the early days of the order, “but it has been suggested to me that the business community is going to have to lower their expectations about how much further guidance will be given, at least over the next week.”

“This was very, very disappointing news to us because there is a tremendous amount of confusion around what’s in and what’s out,” Calley said.

Gov. Whitmer on Monday issued the executive order for residents to stay home and for non-essential businesses to close.

The executive order took effect just after midnight Tuesday morning and remains in effect until 11:59 p.m. on April 13. The order prohibits “in-person work that is not necessary to sustain or protect life” and states that “no person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”

The executive order includes exceptions that allow businesses to self-designate themselves and employees they deem as “critical infrastructure workers” as needed to maintain “minimum basic operations.” Also exempted are employees “whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions,” according to the executive order.

Businesses that stay operating “must adopt social distancing practices and other mitigation measures to protect workers and patrons.”

SBAM has been collecting questions this week from members and submitting them to the governor’s office and the Michigan Department of Labor and Economic Opportunity, Calley said.

“I don’t believe that we’re going to be getting many written answers to most of those scenarios, at least no time soon,” he said. “Unfortunately, it looks like we are not going to get clear guidance, especially on these situations and specific examples that have been shared with us.”

Small businesses will need to analyze the executive order, but are “still going to have to exercise some judgment on whether you’re in or you’re out,” Calley said.

All companies that choose to stay open or partly open have to document the decision and list the reasons why that meets the executive order, Fowler said.

SBAM on Wednesday provided links on its website with template language for small businesses to designate critical infrastructure employees and to designate essential personnel needed to maintain minimum operations.

“Putting it on paper, just the process of identifying the part of the list that allows you to stay is a pretty good exercise to go through to determine whether or not you’re eligible to remain open or partly open,” Fowler said. “If you choose to remain open, then there are some practices you also have to adhere to in the executive order, and then you have to ask yourself, ‘If something went wrong, could I feel confident and comfortable that I was following all of the best practices, that I was really taking care of any employees that were remaining at work?’”

Both Calley and Fowler also expressed frustration about the varying degrees across the state in how the executive order is enforced.

In Oakland County, for example, the county executive this week said businesses there would face tighter restrictions, according to reports.

The state has “been a little unclear” about enforcement, Fowler said.

Guidance from the state has been to “use your best judgment, nobody’s coming after you,” he said. “And then we see on the other hand some enforcement activities that make us a little nervous.”

The order follows federal Department of Homeland Security guidance released last week that defines “critical infrastructure workers” as those in health care and public health; law enforcement, public safety and first responders; food and agriculture; energy; water and wastewater; transportation and logistics; public works; communications and I.T. (including the news media); critical manufacturing; hazardous materials; financial services; chemical supply chains and safety; and defense industrial base.

Under the order, grocery stores, convenience stores, gas stations and pharmacies as well can remain open.

“It’s complicated enough. How in the world would a local sheriff know whether you are a ‘critical infrastructure business’ or not?” Fowler said. “Even if they are very familiar with the Homeland Security list, they don’t know the rationale and whether or not it’s a worthy rationale, given what that business does. Only the business will know that for the time being.”

Michigan Attorney General Dana Nessel on Wednesday said complaints over suspected violations of the executive order should go to local law enforcement.

Nessel said in a news release that anyone seeking interpretation of an executive order should first review those orders and the FAQs listed on the states website. Further information is on the Attorney General website.

“The orders are in place to protect the public health and welfare of Michigan’s residents, and consequences will result to those found to be in willful violation,” Nessel said.

Requests for an interpretation of an executive order can also be made via email at  [email protected]

Replies to inquiries will likely take some time as the Attorney General’s “office discusses them with the governor’s office for a final determination.”

“This situation is fluid and rapidly changing, and we appreciate your patience,” Nessel said. “We’re all in this together and we are counting on every resident to do everything they can to stay safe, stay healthy and stay home.”

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