Running a Business in the Age of COVID-19

RUNNING A BUSINESS IN THE AGE OF COVID-19

Running a business is difficult enough. Meeting a payroll. Complying with regulations. Hiring and retaining staff. Staying ahead of the competition.

The novel coronavirus has added new layers of challenges and complexity.

The March 25, 2020 Governor’s Executive Order provides that, unless an exemption applies, Minnesota residents are required to stay at home starting at 11:59 p.m. on Friday, March 27 through Friday, April 10 at 5 p.m., unless extended further. Governor’s March 25, 2020 Emergency Executive Order 20-20, “Directing Minnesotans to Stay at Home.”

There are certain exemptions for workers employed in “critical sectors” of our economy. Public reports indicate that 78 percent of employees are employed by sectors deemed “critical” under the Executive Order[1]. This has led to questions about what the Order means for businesses that are deemed to be “critical sectors” and whether employees in those businesses must work from home if they can do so or, if not, what precautions must be taken.

Employees Who Can Work from Home Should Do So.
The Order provides a variety of exemptions from the stay-at-home requirement, including for workers in “critical sectors” in some circumstances. Order, paragraph 6. The Order further states that “Workers in…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” to stay at home for purposes of performing work duties and commuting to and from work (including dropping children off at childcare so the parent can work). Order, paragraph 6.

The Order further states that: “All workers who can work from home must do so” and that the exemption for workers in “critical sectors” like insurance agencies only applies to “an individual’s performance of work duties that cannot be done at their homes or residence.” “Workers” include not just employees, but also contractors, vendors, and volunteers. Order, paragraph 4.

The Executive Order does have an exemption for people to leave their home to obtain “supplies needed to work from home” and to obtain products needed to maintain the essential operation of businesses. Order, paragraph 5(d).

Thus, the premise of the Order is that employees must work from home if they can, even if they fall within a “critical sector” exemption. Furthermore, employees who are at high risk of serious illness from COVID-19 are strongly encouraged under the Order to stay in their homes, even if the terms of the Executive Order would allow them to leave. Order, paragraph 8.

Examples of Critical Sectors.
Numerous industries are defined in the Order as “critical sectors” of the economy, including:

Insurance Agencies and Financial Services.
Paragraph 6(l) of the Order contains an exemption for “banks, credit unions, insurance companies, insurance agencies and other financial services workers.”

Real Estate Transactions.
Paragraph 6(hh) of the Order contains an exemption for “workers who facilitate and finance real estate transactions and real estate services, including appraisers and title services.”

Legal Services.
Paragraph 6(cc) of the Order contains an exemption for legal services workers “who are necessary to provide essential legal services.” "Essential legal services" include, among other things:

  • Advice and representation required to ensure the immediate and critical health, safety, and liberties of Minnesotans, including but not limited to, end-of-life planning, immigration, essential services to elders and persons with disabilities, child supports, child-protection and domestic abuse matters, protection of personal financial resources necessary to meet basic needs, prosecution or defense in ongoing criminal matters, or all matters in which individuals are held in custody pending a legal proceeding, and proceedings held in the district or appellate courts during the effective period of the order.
  • Advice and representation related to the continuation of the Critical Sectors identified in this Executive Order, including compliance with this Executive Order, previous Executive Orders, and all applicable laws, rules, and regulations applying to Critical Sectors.
  • Supporting housing and shelter-related efforts, including loan applications, loan processing, seeking temporary relief from residential and commercial loan or lease provisions, retention of gas, electric, or water utility services, and seeking temporary relief from residential evictions or foreclosures, or other actions intended to keep people in their homes.

Health Care.
Paragraph 6(a) of the Order broadly categorizes health care workers listed in the federal CISA Guidance as critical workers. Under prior Executive Orders, all non-essential or elective surgeries and procedures, including non-emergent or elective medical, dental care, or veterinary care, that utilize personal protective equipment or ventilators were required to be postponed by March 23. Emergency Executive Order 20-09, March 19, 2020.

A “non-essential surgery or procedure” is one that can be delayed “without undue risk to the current or future health of a patient.”

Precautions for Employees on the Job.
The Order provides that, to the maximum extent possible, employers should adhere to Occupational Safety and Health Standards and the Minnesota Department of Health and CDC Guidelines for COVID-19, including physical distancing and hygiene. Order, paragraph 7.

The CISA, a cyber-infrastructure division within the U.S. Department of Homeland Security, also issued Guidance for essential critical infrastructure employees on March 23[2]. The federal Guidance also recommends that employers follow guidance from the CDC and state public health officials to limit the spread of COVID-19. The Guidance recommends that employees be encouraged to work remotely if possible and to focus on core business activities.

The Guidance further states that in-person, non-mandatory activities should be delayed until the resumption of normal operations. It also states that if remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease, such as separating staff by shifts, hours or days or by physical distancing.

Workers’ Compensation.
There have also been questions raised about an employer’s liability if an employee is exposed to COVID-19 from an ill co-worker or customer. The answers to those questions are heavily fact-dependent.

As a general proposition, though, the workers’ compensation laws provide that an employer is liable for workers’ compensation benefits for injuries “arising out of and in the course of employment.” Minn. Stat. 176.021. In 2013— in a case called Dykhoff v. Xcel Energy, 840 N.W.2d 831 (Minn. 2013)—the Minnesota Supreme Court interpreted when an injury “arises out of” employment. In that case, an employee fell while wearing two inch heals while crossing the floor at a required training session at the offices of her employer. The Minnesota Supreme Court held that the “arising out of employment” element may be met if “there is something about the…condition that ‘increases the employee’s exposure to injury beyond that’ the employee would face in his or her everyday non-work life.” Applying this standard to the facts in Dykhoff, the court held that the worker “did not prove that her workplace exposed her to a risk of injury that was increased over what she would face in her everyday life,” in part because there was nothing hazardous about the floor on which she was walking when she fell.

With COVID-19, a court may consider factors such as whether the employee is in a critical work sector, whether the employee can show she was exposed to the virus from ill co-workers or customers and therefore faced a special hazard at work, whether the employee was exposed to the virus from others outside of the workplace, such as ill family members, the percentage of the general public with the virus at the time the worker fell ill, etc.

The COVID-19 situation is fluid. If you have specific questions about the impact of COVID-19 on your business, you should obtain advice from an attorney.

***

Lori Swanson served as Attorney General from 2007 to 2019. Prior to that, she served as Solicitor General of the State of Minnesota and Deputy Attorney General. Mike Hatch served as Attorney General from 1999 to 2007. Prior to that, he served as Commissioner of the Minnesota Department of Commerce. Hatch and Swanson practice law at Swanson Hatch, P.A. They may be reached at 612-315-3037. Visit their website at www.swansonhatch.com.


www.swansonhatch.com
431 South Seventh Street, Suite 2545
Minneapolis, MN 55415
612-315-3037

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[1]https://www.kare11.com/article/news/health/coronavirus/essential-vs-non-essential-workers-under-minnesota-stay-at-home-order/89-f3b516a8-9505-438b-9e07-800daa2e4ce0
[2]https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce


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Swanson | Hatch, P.A.
431 S. 7th Street, Suite #2545
Minneapolis, MN 55415
612-315-3037

www.swansonhatch.com