Minnesota Governor Walz Gradually Eases COVID-19 Business Restrictions

On March 12, 2021, Minnesota Governor Tim Walz dialed back Minnesota’s COVID-19–related restrictions by issuing Emergency Executive Order (EO) 21-11, “Adjusting Limitations on Certain Activities and Taking Steps Forward.” Most provisions of the executive order went into effect on March 15, 2021, and relate to activities outside of the home, including relaxing restrictions on specific businesses (e.g., restaurants, bars, indoor gyms, and entertainment venues).

Notably, Executive Order 21-11 contains a big shift as of April 14, 2021, by changing the compulsory language of “employees who can work from home, must work from home” to permissive language. More specifically, starting at 11:59 p.m. on April 14, 2021, “employers are strongly encouraged to allow employees who can work from home to continue to work from home.” [Emphasis added.] Further, the order states that employers are “strongly encouraged to implement reasonable accommodations for at-risk employees or employees with one or more members of their household who have underlying medical conditions and are not yet eligible for vaccination.”

Executive Order 21-11 further notes that the protections in Emergency Executive Order 20-54 related to workplace safety and unsafe work conditions “remain in full force and effect.” According to Executive Order 21-11, “[a]ll 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.”

Additional significant provisions of the executive order are listed in the table below.

Type of Business	Updated Restrictions
Restaurants, bars, and other food establishments	For indoor spaces, “occupancy must not exceed 75 percent of the normal occupant capacity, with a maximum of 250 people, provided that physical distancing … is maintained.” Outdoor space occupancy is limited to ensure adequate social distancing and may not exceed 250 people. On March 31, 2021, at 11:59 p.m., businesses “with indoor space and sufficient normal occupant capacity may exceed 250 people indoors in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website.” For seated establishments, occupancy is limited to 3,000 people. Likewise, businesses “with outdoor space and sufficient normal occupant capacity may exceed 250 people outdoors in accordance with the applicable limitations and guidance available on the Stay Safe Minnesota website.” However, “[t]otal outdoor occupancy must not exceed 10,000 people.” “All establishments must ensure that no more than six customers are seated at one table.” “All establishments must close and remain closed each day for on-premises consumption between the hours of 11:00 pm and 4:00 am.” According to the executive order, this restriction “is [not] intended to limit or discourage delivery service, window service, walk-up service, or drive-up service.”
Indoor gymnasiums, fitness centers, recreation centers, indoor sports facilities, etc.	“[O]ccupancy of any indoor space and the entire facility must not exceed 50 percent of the normal occupant capacity and must not exceed 250 people in the entire facility.” However, starting at 11:59 p.m. on March 31, 2021, “indoor spaces with sufficient normal occupant capacity may exceed 250 people in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website.” In addition, total occupancy for indoor spaces “must not exceed 1,500 people.” Social distancing must still be maintained in accordance with guidance on the Stay Safe website. Face coverings must still be worn.
Entertainment venues	Social distancing must be maintained. Face coverings must be worn. “[O]ccupancy must not exceed 50 percent of the normal occupant capacity and must not exceed 250 people.” However, starting at 11:59 p.m. on March 31, 2021, “venues with indoor space and sufficient normal occupant capacity may exceed 250 people indoors in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website.” In addition, total indoor occupancy may not exceed 3,000 people for seated venues and 1,500 people for non-seated venues. In addition, starting at 11:59 p.m. on March 31, 2021, “venues with outdoor space and sufficient normal occupant capacity may exceed 250 people outdoors in accordance with the applicable percentage limitations and guidance available on the Stay Safe Minnesota website.” Total outdoor occupancy may not exceed 10,000 people. “[V]enues are encouraged to offer drive-in or drive-through experiences.” Finally, “any venue that offers food or beverages for on-premises consumption or that permits food or beverages to be consumed on premises must not offer food or beverage service each day between the hours of 11:00 pm and 4:00 am.”

Finally, Executive Order 21-11, like other executive orders, has some teeth to encourage compliance. The executive order provides that the Minnesota Department of Labor and Industry (DLI) “may issue citations, civil penalties, or closure orders to places of employment with unsafe or unhealthy conditions, and DLI may penalize businesses that retaliate against employees who raise safety and health concerns.” Further, EO 21-11’s enforcement provision states that “[a]ny business owner, manager, or supervisor who requires or encourages any of their employees … to violate this Executive Order is guilty of a gross misdemeanor” and may be “punished by a fine not to exceed $3,000 or by imprisonment for not more than one year.”

Notwithstanding the above, Minnesota employers may want to carefully consider their options before recalling their remote workforces. Doing so may open up a business to potential liability given the additional workplace safety obligations businesses will have to follow as well as the above-mentioned regulatory scrutiny.

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) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.