Governor Walz ‘Dials Back’ Minnesota’s Phased Reopening Due to Resurgence of COVID-19

On November 18, 2020, Minnesota Governor Tim Walz dialed back Minnesota’s phased reopening and ongoing loosening of COVID-19–related restrictions by issuing Emergency Executive Order (EO) 20-99, “Implementing a Four Week Dial Back on Certain Activities to Slow the Spread of COVID-19.” Executive Order 20-99 is effective from November 20, 2020, at 11:59 p.m., until December 18, 2020, at 11:59 p.m. Governor Walz may extend the executive order, which largely depends on compliance and the available data. While not nearly as restrictive as Governor Walz’s initial stay-at-home order, issued in March 2020, EO 20-99 still prohibits or restricts social gatherings and the operations of a variety of businesses, including in-person dining businesses, indoor event and entertainment venues, indoor sports facilities, and fitness establishments.

Specifically, the following types of businesses are closed temporarily pursuant to EO 20-99:

• “[r]estaurants, food courts, cafes, coffeehouses, bars, taverns, breweries, microbreweries, distilleries, brewer taprooms, micro distiller cocktail rooms, tasting rooms, wineries, cideries, clubhouses, dining clubs, tobacco product shops, hookah bars, cigar bars, vaping lounges, and other [p]laces … offering food, beverages (including alcoholic beverages), or tobacco products for on-premises consumption,” though these businesses “are encouraged to offer food and beverage using delivery services, window service, walk-up service, drive-through service, or drive-up service”;
• “[p]ublic pools”;
• “[g]ymnasiums, fitness centers, recreation centers, indoor sports facilities, indoor climbing facilities … martial arts facilities, and dance and exercise studios,” except that these businesses are permitted to open to members of the public for outdoor recreational activities (provided that these businesses follow Minnesota’s guidance for outdoor recreation), for licensed child care services (provided that these businesses follow the guidance for schools and child care programs), or for youth programs (provided that these businesses follow the guidance for youth and student programs);
• “[v]enues providing indoor events and entertainment such as theaters, cinemas, concert halls, festivals, fairs, vendor fairs, museums, performance venues, stadiums, arcades, and bowling alleys”; and
• “[v]enues providing outdoor events and entertainment such as racetracks, paintball, go-karts, mini-golf, performance venues, festivals, fairs, vendor fairs, and amusement parks.”

In addition, EO 20-99 lists a number of significant requirements with respect to places of public accommodation and businesses that may remain open:

• “All work must be conducted in a manner that adheres to Minnesota [Occupational Safety and Health Administration] Standards and [Minnesota Department of Health] and [U.S. Centers for Disease Control and Prevention] Guidelines, including social distancing and hygiene practices.” Notably, EO 20-99 reaffirms that the Minnesota Department of Labor and Industry may issue citations, civil penalties, or closure orders for noncompliance.
• Businesses must continue to develop and implement COVID-19 preparedness plans using industry-specific public health guidance available at the Stay Safe Minnesota website. All plans must “ensure that all workers who can work from home continue to do so”; have policies and procedures (including health screenings) to ensure that sick workers stay home; “establish social distancing policies and procedures”; “establish hygiene and source control policies”; and “establish cleaning, disinfection, and ventilation protocols.” Customer-facing businesses “must include additional [p]lan provisions to keep the public and workers safe” as well, including social distancing protocols and store occupancy limits. Each preparedness plan must be signed by senior management “affirming their commitment to implementing and following the [p]lan.”
• “Each business must ensure that training is provided to workers on the contents of its [p]lan and required procedures.”
• “Each business must provide its [p]lan, in writing, to all workers” and post the preparedness plan at all of the business’s workplaces. Where physical posting is impracticable, a business may post the preparedness plan electronically as long as it is accessible to employees.
• Businesses also must implement exposure notification protocols “for identifying and communicating with workers who may have been exposed to a person with COVID-19 symptoms or who has tested positive for COVID-19 while at work.”

Masks and face coverings are still required in certain settings pursuant to Executive Order 20-81.

EO 20-99 also prohibits social gatherings between individuals who are not members of the same household, even with social distancing. This prohibition does not include activity by workers or customers, and many business are permitted to remain open (with the exception of the enumerated businesses discussed above), as long as the businesses follow the requirements and limitations in the order as discussed b (e.g., developing and implementing preparedness plans). The prohibition on gatherings also does not include educational and care services for children and youth or gatherings of persons in health care facilities and residential treatment facilities (provided that the aforementioned entities follow applicable state and federal guidance).

Any event venues that “offer gathering space for wedding services, funeral services, or other planned services such as worship, rituals, prayer meetings or scripture studies,” are allowed to host such events as long as they ensure 6 feet of physical separation between households, do not exceed 50 percent occupancy, do not exceed 250 people (both in indoor and outdoor settings), and develop COVID-19 preparedness plans. Notwithstanding these restrictions, such venues, places of worship, and funeral homes are “strongly encouraged to offer virtual alternatives.” Individuals, venues, and businesses may not, however, host “celebrations, receptions, private parties, or other social gatherings, including but not limited to those connected to weddings, funerals, life milestones (such as birthdays or retirements), family reunions, planned religious services, and other similar occasions.”

EO 20-99 also contains a travel advisory for “[p]ersons arriving in Minnesota from other states or countries, including returning Minnesota residents.” While the advisory encourages (rather than mandates) such persons to “practice self-quarantine for 14 days after arrival,” the recommendation does not apply to individuals who must cross state or country borders for work purposes.

EO 20-99 also has an enforcement provision with fairly robust penalties. While Governor Walz stated in the order that he “urge[d] all Minnesotans to voluntary comply” with the order’s requirements, an individual who willfully violates the order may be found guilty of a misdemeanor and punished by a fine up to $1,000 or by imprisonment for up to 90 days. Further, EO 20-99 provides that “business owner[s], manager[s], or supervisor[s] who require[] or encourage[] any of their employees … to violate” the executive order may be “guilty of a gross misdemeanor and … punished by a fine not to exceed $3,000 or by imprisonment for not more than a year.” Lastly, the enforcement provision allows the Minnesota attorney general, as well as city and county attorneys, to investigate and seek civil relief, including but not limited to injunctive relief, civil penalties (up to $25,000 per occurrence), costs of investigation, reasonable attorneys’ fees and costs, and other equitable relief.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resources Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.