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Minnesota’s Shelter-In-Place Order expires at midnight on Monday, May 18th. However, this does not mean Minnesota is returning to business as usual. In preparing for the expiration of the order, on May 13 Governor Tim Walz issued a series of executive orders. First, he extended the COVID-19 Peacetime Emergency until June 12, 2020. He also issued an order protecting high risk Minnesotans, an order outlining the requirements and precautions employers must take before inviting their employees and customers back into their workplaces, and an order protecting employees who complain of unsafe working conditions and qualified disabled employees who need COVID-19-related accommodations. Below is a breakdown of how the new executive orders will affect Minnesota employers.

Can everything reopen on May 18th?

No. Bars, restaurants, salons, and other places of public accommodation are not permitted to reopen until June 1, 2020. However, they may conduct retail sales so long as they are following the requisite safety guidelines (see below).

Can I require my employees to come into the office instead of working from home?

No. Pursuant to the Executive Order, all employees who can work from home must do so. However, if your employee is unable to work from home, you can require them to return to work.

How do we ensure it is safe to reopen our workplace?

All Non-Critical Businesses choosing to open or reopen must establish and implement a COVID-19 Preparedness Plan. The Plan must provide for the implementation of Minnesota OSHA Standards and MDH and CDC Guidelines in their workplaces. You can find more information about those here. At a minimum, the Plan must include policies that address the following topics:

  1. Require work from home whenever possible. As mentioned above, if your workers can work from home, they must continue to do so.

  2. Ensure that sick workers stay home. All Plans must include policies and procedures, including health screenings, that prevent sick workers from entering the workplace.

  3. Social distancing.

  4. Worker hygiene and source control.

  5. Cleaning, disinfection, and ventilation protocols.

Are there different requirements for customer-facing businesses?

Yes. Plans for Non-Critical Businesses that are customer-facing must include additional provision to keep the public and workers safe, such as requiring workers and customers maintain physical distances of six feet and that store occupancy must not exceed 50% of the normal occupant capacity. For customer-facing businesses that share common areas, Plans must include a facility occupancy that does not exceed 50% of the normal occupant capacity and provide an enhanced sanitizing, cleaning, and disinfecting regimen consistent with Minnesota OSHA Standards and MDH and CDC Guidelines. Plans must also include signage to discourage gathering in such common areas.

Can we see an example plan?

The Minnesota Department of Employment and Economic Development has published a COVID-19 Preparedness Template. View it here.

We’ve put together a Plan. Now what?

  1. Sign and certify. Senior management must sign and certify the Plan, and they are responsible for implementing it.

  2. Dissemination. Employers must also provide the Plan to all workers, and it should be posted at all workplaces in viewable places. If physical posting is impractical, electronic posting will suffice.

  3. Training. All Non-Critical Businesses that are bringing their employees back to work must train their workers on their Plan. All workers must understand the Plan and be able to perform the necessary precautions to protect themselves and others. Such training should be easy to understand and available in the appropriate languages and literacy standards. Employers should also take steps to supervise workers to ensure they are adhering to the Plan. Employers must document this training, as it must be made available to the DLI or other regulatory agencies upon request.

  4. Preapproval not necessary. Though preapproval is not necessary, Non-Critical Businesses must make their Plan available to regulatory authorities and public safety offers, including DLI, upon request.

What if my business was already open as a Critical Business?

Critical Businesses who have remained open throughout the pandemic do not need to establish Plans nor do they need to comply with the 50% occupancy rule. However, they must continue to abide by the CDC guidelines and state and federal OSHA standards.

How do we comply with the restriction on gatherings of over ten people?

The restrictions on gathers of over ten people do not apply to commercial activity by workers and customers of Critical and Non-Critical Businesses.

What if my employee won’t come in because they are scared of contracting or spreading COVID-19?

Employers get to set the terms and conditions of employment. However, Executive Order 20-54 makes clear that it is unlawful to retaliate against employees who ask questions or voice concerns about occupational safety or health matters related to COVID-19.

What if employees want to wear gloves, face coverings, eye protection, or any other protective gear that does not conform with our uniform requirements or dress code policies?

An employer cannot discriminate or retaliate in any way against a worker who wears protective gear they personally procured and reasonably believe will protect them, their coworkers, or the public against COIVD-19 in the course of their work, so long as the protective gear doesn’t violate industry standards or existing employer policies related to health, safety, or decency.

Can we require our employees to use protective gear we provide them instead of their own?

Yes, so long as the protective gear meets or exceeds the employee’s personal protective gear.

What if my employee refuses to come into work because they say it is unsafe?

Workers have the right to refuse work if they reasonably and in good faith believe that the work conditions present an imminent danger of death or serious physical harm. This includes workplaces the worker reasonably believes are unsafe or unhealthy due to COVID-19. If an employee raises such a concern, and the concern goes uncorrected, an employer cannot retaliate or discriminate against the employee for refusing to work under such conditions.

What happens if my employee complains to DLI?

Workers have a right to request that DLI conduct an inspection of the workplace if they believe that a safety or health standard has been violated and a threat of physical harm or imminent danger exists. Employers cannot discriminate or retaliate against employees that request an inspection or otherwise exercise their rights under Minnesota’s OSHA statutes.

If my employee quits because they don’t think it’s safe to work, will they be eligible for unemployment insurance benefits?

If a worker quits because the employer has failed to correct an adverse work condition related to the pandemic which would compel an average, reasonable worker to quit, and the worker complained about the condition to the employer and gave the employer a reasonable opportunity to correct the problem but the employer failed to do so, that worker is likely to be eligible for unemployment insurance benefits. The same is true for employees who are terminated in retaliation for exercising their rights under Minnesota’s OSHA statutes. Failing to develop or implement a COVID-19 Preparedness Plan or failing to implement Minnesota OSHA Standards or MDH and CDC Guidelines related to COVID-19 constitute adverse work conditions.

How do we accommodate employees who are high risk for contraction and complications of COVID-19?

Under the MHRA, employers are obligated to provide reasonable accommodations related to COVID-19 for qualified employees with disabilities, which may include employees with health conditions who are at high-risk if they are exposed to or if they contract COVID-19. Reasonable accommodations may include adjusting schedules or work stations, permitting employees to work from home, or giving employees a leave of absence. Governor Walz has authorized and directed the Commissioner of Human Rights to issue guidance on this topic—stay tuned for an update whenever this guidance is released.

Going Forward

As life starts returning to normal, it is likely other states will adopt policies similar to Minnesota’s. It is important for employers to stay up to date on the policies in place in the locations where they do business.

myHRgenius and Thompson Coe continue to monitor these new HR laws and their impact on employers and employees throughout the country.  For more information, including webinars, primers, summaries and podcasts on COVID-19 go to www.myhrgenius.co or www.thompsoncoe.com or call 651-389-5080.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.

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