What Is An ‘Essential Business’ Under Government Lockdowns?

Laura Schlecte is a city council member for the city of Jackson as well as an owner of The Orange Peacock Gallery in Jackson.

The store sells gifts, art works and chocolate, and on March 17 posted on its website and Facebook that it is open by appointment only.

“We are doing our part ... to keep our customers and staff stay safe and healthy, we will be switching to ‘By Appointment Only’ shopping until March 31.”

Schlecte said her business hasn’t made any deliveries since the March 23 “stay at home” executive order issued by Gov. Gretchen Whitmer.

But as a small business owner she’s wondering what would be the harm of her delivering an order requested by a customer.

“Obviously, the gallery is not an essential business,” Schlecte said. But she added if a customer asked about getting someone a birthday present, “I don’t know why I couldn’t personally go in, get the item, wrap it up and deliver it to the person’s door.”

“I believe it would be safer for me to do that than to go to the grocery store,” she said.

Schlecte isn’t alone in wondering what is allowed and not allowed for businesses under the executive order.

For example, WJBK reported on Wednesday that Whitmer had to clarify her original order and said, “If businesses are not sure if they’re life-sustaining, assume they are not.”

Remarks the governor made at a March 26 briefing didn’t seem to help. Whitmer said, “But if you are a landscaper, if you are a florist, if you are home construction, none of those is a life sustaining business that should be open.”

Also, “So I would encourage any business that is not sure if their life sustaining to probably assume that they’re not.” She warned that businesses found in violation are “risking your business license and fines.”

The March 23 executive order directs Michiganders to stay in their homes unless they’re a part of that critical infrastructure workforce, engaged in recreational outdoor activity, or performing tasks necessary to the health and safety of themselves or their family. These include purchasing “other products necessary to maintain the safety, sanitation, and basic operation of their residences.” (The full list that the executive order cited is included at the end of the story.)

Schlecte notes that lawn care services are not on the list of exceptions, and as a city council member wonders if lawn care business would eventually become necessary. If the state-mandated stay-at-home order goes on into the summer, Schlecte wonders how businesses and senior citizens will maintain their properties without hiring lawn services.

Here are what the relevant provisions of the March 23 executive order stated:

For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). Such workers include some workers in each of the following sectors:

(a) Health care and public health.

(b) Law enforcement, public safety, and first responders.

(c) Food and agriculture.

(d) Energy.

(e) Water and wastewater.

(f) Transportation and logistics.

(g) Public works.

(h) Communications and information technology, including news media.

(i) Other community-based government operations and essential functions.

(j) Critical manufacturing.

(k) Hazardous materials.

(l) Financial services.

(m) Chemical supply chains and safety.

(n) Defense industrial base.

For purposes of this order, critical infrastructure workers also include:

(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers as defined in this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of critical infrastructure workers.

(b) Workers at designated suppliers and distribution centers, as described below.

(1) A business or operation that employs critical infrastructure workers may designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of its critical infrastructure workers.

(2) Such suppliers, distribution centers, or service providers may designate workers as critical infrastructure workers only to the extent those workers are necessary to enable, support, or facilitate the work of the original operation’s or business’s critical infrastructure workers.

(3) Designated suppliers, distribution centers, and service providers may in turn designate additional suppliers, distribution centers, and service providers whose continued operation is necessary to enable, support, or facilitate the work of their critical infrastructure workers.

(4) Such additional suppliers, distribution centers, and service providers may designate workers as critical infrastructure workers only to the extent that those workers are necessary to enable, support, or facilitate the work of the critical infrastructure workers at the supplier, distribution center, or service provider that has designated them.

(5) Businesses, operations, suppliers, distribution centers, and service providers must make all designations in writing to the entities they are designating, whether by electronic message, public website, or other appropriate means. Such designations may be made orally until March 31, 2020 at 11:59 pm.

(6) Businesses, operations, suppliers, distribution centers, and service providers that abuse their designation authority shall be subject to sanctions to the fullest extent of the law.

(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.

(d) Workers and volunteers for businesses or operations (including both and religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.

(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.