Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Minnesota is moving forward with its phased approach to reopen businesses, but employers should be aware of both state and local requirements as they prepare to bring employees back to work and open their doors to customers and clients.
Which businesses can currently open, and what are the guidelines?
As of April 27, 2020, Minnesota allowed certain non-critical employers, such as industrial and manufacturing businesses, and office-based businesses, to reopen. Beginning May 18, 2020, all retail stores, malls, and other businesses that sell, rent, maintain and repair goods were also allowed to reopen as long as they adopted a COVID-19 Preparedness Plan (described below). Various outdoor recreational activities and associated facilities, such as state and local parks, public and private marinas and docks, public and private golf courses, and bait and tackle shops were also permitted to reopen.
All non-critical, customer-facing businesses, such as retail stores, must also implement guidelines to maintain physical distancing of six feet and cannot allow more than 50% occupancy at any time.
Effective May 26, 2020, places of worship, funeral homes, and other venues that offer gathering space for weddings, funerals, or planned services such as worship, ritual, prayers meetings, or scripture readings, may host such weddings, funerals, or services with more than 10 people, provided that they adhere to the following requirements:
- In all settings, ensure a minimum of six feet of physical distancing between households.
- In indoor settings, occupancy must not exceed 25% of the normal occupant capacity, with a maximum of 250 people in a single self-contained space.
- In outdoor settings, gatherings must not exceed 250 individuals.
- Adopt and implement a COVID-19 Preparedness Plan.
What other businesses can reopen beginning June 1, 2020?
Beginning June 1, 2020, Minnesota restaurants and bars, personal care services and salons, and other recreational activities may reopen if they comply with certain requirements, including:
Restaurants and Bars
- Reopen for outdoor service only.
- Ensure a minimum of six feet of distance between tables.
- Limit on-premises capacity to no more than 50 persons.
- Limit table service to four persons, or six if part of one family unit.
- Require reservations in advance.
- Require workers to wear masks or face shields and strongly encourage masks or face coverings be worn by customers.
- Adopt and implement a COVID-19 Preparedness Plan.
Cities such as Minneapolis and Bloomington have approved restaurants and bars to expand outdoor dining into parking lots and sidewalks. Businesses interested in doing so need to apply for a permit through the city for the temporary expansion.
Personal Care Services (salons, barbershops, and tattoo parlors)
- Limit the number of clients inside the business at any time to ensure six feet of distance between persons except when providing services.
- Reduce occupant capacity to no more than 25%.
- See clients by appointment only, not allowing walk-ins.
- Require workers and clients to wear masks at all times, and do not provide services that cannot be performed without masks.
- Adopt and implement a COVID-19 Preparedness Plan.
The Minnesota Department of Natural Resources plans to reopen its campgrounds in a phased approach starting June 1, 2020. Developed campgrounds and charter boats may begin reopening in accordance with state guidance, as well as guidelines provided by the Minnesota Department of Natural Resources.
What is not opening as of June 1, 2020?
At this time, Minnesota does not plan to reopen indoor dining at restaurants; gyms, personal fitness studios, yoga studios or martial arts studios; entertainment such as bowling alleys, movie theaters, arcades or theaters; and pools. Gatherings will continue to be limited to 10 or fewer individuals, with the exception for weddings, funerals, or planned services such as worship, rituals, prayer meetings, or scripture studies. Minnesota has not yet identified an anticipated date to reopen such businesses.
What is required in a COVID-19 Preparedness Plan?
All non-critical-sector businesses that have been allowed to reopen on or after April 27, 2020 must adopt and implement a COVID-19 Preparedness Plan. A COVID-19 Preparedness Plan must include and describe how it will implement the following:
- Policies and procedures, such as health screening surveys or temperature checks, that assist in the identification of sick workers and ensure sick workers stay home;
- Implementation of protocols for social distancing;
- Worker hygiene and source controls;
- Workplace building and ventilation protocols;
- Workplace cleaning and disinfecting protections and protocols; and
- Communications, training, and supervision protocols.
For client-facing businesses, the COVID-19 Preparedness Plan must also include additional protections and protocols for:
- What customers and clients can do to minimize transmission;
- Receiving and exchanging payment;
- Managing occupancy;
- Limiting face-to-face interactions; and
- Distancing and barriers.
Businesses are required to sign their plan, circulate it among their workers, and post it throughout the workplace. Training must also be provided to workers on the contents of the Plan and required procedures. Businesses are not required to submit their plans to state government, but they must provide them upon request. A COVID-19 Preparedness Plan should be created to fit the business and its risks specifically. To help guide the process, Minnesota’s Department of Employment and Economic Development provides a template for establishing a Plan.
What other considerations should Minnesota employers keep in mind when reopening?
The state of Minnesota and local authorities have issued additional Executive Orders and guidance to protect employees during reopening in order to ensure safe working conditions and prevent retaliation against workers.
Minnesota does not currently require the use of face masks or face coverings at all times, but Minnesota Governor Walz has provided guidance that workers should be required to wear face masks while serving customers and that customers should similarly be encouraged to wear face masks.
However, Mayor Jacob Frey of the City of Minneapolis declared that effective May 26, 2020, any individual who is over age two and able to medically tolerate a face covering will be required to cover their nose and mouth with a mask or face cloth when in indoor spaces of public accommodation. Additionally, all employers of businesses that are spaces of public accommodation must require their employees to wear a cloth face covering during face-to-face contact with the public. The face covering must cover a person’s nose and mouth, but need not be a medical-grade mask.
Temperature Checks or other Health Screening Surveys
Businesses are not currently required under state or federal law to do temperature checks of their workers or visitors. However, the Centers for Disease Control and Prevention (CDC) recommends temperature checks or other health screenings as an option to ensure the health and safety of the workplace.
In Minnesota, as part of the COVID-19 Preparedness Plan, all non-critical businesses must adopt and implement policies and procedures to prevent sick workers from entering the workplace. Such policies and procedures may include regular temperature checks or health screening questions. Regardless of the procedure, businesses must protect and maintain the results or responses in a confidential manner.
Discrimination and Retaliation
Governor Walz issued an Executive Order on May 13, 2020, effective immediately, to protect workers from discrimination or retaliation as it relates to COVID-19. Under this Order, protected activities include:
- wearing gloves, a cloth face covering, eye protection, or other protective gear the worker reasonably believes will protect them, their coworkers, or the public against COVID-19 in the course of their work;
- refusing to work under conditions that the employee, in good faith, reasonably believes presents an imminent danger of death or serious physical harm, including in an unsafe or unhealthful manner with an infectious agent such as COVID-19.
Executive Order 20-54 also directs employers to provide reasonable accommodations for employees with disabilities, including those who are at high risk if they are exposed to or contract COVID-19. Reasonable accommodations may include adjusting work schedules or work stations, allowing employees to work from home, or permitting use of leave.
The Minnesota Department of Labor and Industry has the authority to award backpay and compensatory damages for substantiated complaints of discrimination or retaliation. Additionally, any worker who quits their employment because their employer failed to correct an adverse work condition related to the pandemic or was terminated in retaliation for complaining of such an adverse work condition, will not lose unemployment insurance benefits eligibility. Examples of an adverse work condition include an employer’s failure to develop or implement a COVID-19 Preparedness Plan, or failure to adequately implement guidelines in the workplace as established by Minnesota Occupational Safety and Health Administration, Minnesota Department of Health, or the CDC.
Governor Walz also issued an Executive Order on May 13, 2020, strongly urging all at-risk persons to stay at home. “At-risk persons” is defined to include people who are:
- 65 years and older;
- Living in a nursing home or long-term care facility;
- Any age with underlying medical conditions, particularly if not well controlled, including:
- People with chronic lung disease or moderate to severe asthma;
- People who have serious heart conditions;
- People who are immunocompromised;
- People with severe obesity;
- People with diabetes;
- People with chronic kidney disease undergoing dialysis; and
- People with liver disease.
The Order provides that such at-risk persons should stay home except to engage in necessary activities, including work. However, employers should be cognizant if any employees request accommodations to minimize the risk of COVID-19.
Employers in Minnesota need to be prepared to safely return employees to work and maintain a safe working environment. In order to do so, employers should consult with counsel to create a COVID-19 Preparedness Plan tailored to their business that satisfies the industry-specific guidelines published by Minnesota. In addition, employers should consult counsel to ensure that they are taking appropriate measures to protect their employees and that those measures comply with privacy, disability, and safety laws and regulations.
In addition to preparing and following the COVID-19 Preparedness Plan,
- Employers should be prepared to engage in discussions regarding employees’ needs for time off and other accommodations.
- Employers should continue to consider work-from-home policies for those employees who are able to do their jobs from home.
- Employers should be aware of their non-retaliation responsibilities and have policies and procedures in place to prevent discrimination or retaliation against those taking measures to prevent the spread of COVID-19.
- Employers should be mindful of confidentiality and privacy obligations toward employees.
- Employers should consider their paid time off and leave policies in light of local paid sick and safe time ordinances, the Family and Medical Leave Act, and the Families First Coronavirus Response Act, and the Americans with Disabilities Act.