October 26, 2020

Volume X, Number 300

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October 26, 2020

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COVID-19 Impact On Aviation: Michigan’s Extended Stay Safe, Stay Home Order

Michigan Gov. Gretchen Whitmer signed Executive Order 2020-42 on April 9 to reaffirm, clarify, and extend the duration of the measures contained in her previous “Stay Home, Stay Safe” Executive Order 2020-21 until April 30. It also identifies additional critical infrastructure businesses and business activities that are allowed to continue minimum basic operations, including aviation and transportation entities.  

The previous order required all Michigan residents to stay at home and temporarily suspended in-person operations for noncritical infrastructure businesses through April 13, in order to prevent the spread of COVID-19. The new order became effective at 11:59 p.m. on April 9 and significantly expands the prior order.  

Critical Infrastructure Workers: Transportation and Logistics Businesses, including those in Aviation

The new order, just as in the original order, affects certain critical transportation and logistics entities. This revised order again incorporates by reference the March 19 guidance from the U.S. Cybersecurity and Infrastructure Security Agency (CISA), excluding any subsequent guidance document released by the CISA. 

The new order specifically refuses to adopt expanded guidance on what constitutes critical infrastructure, according to the March 28 issuance by the CISA, which means some individuals recognized as critical infrastructure workers at the federal level are not recognized in Michigan. For example, farm auction workers, pest control workers, chemical storage workers, mine workers, and certain warehouse workers are less likely to be included. Therefore, Michigan employers are not able to rely on the expanded descriptions of critical infrastructure that appeared in that new guidance, but instead must still rely upon the prior CISA guidance in making critical infrastructure determinations.  

The applicable March 19 CISA guidance specifically includes the following aviation-related workers:

  • Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, and workers that maintain and inspect infrastructure (including those that require cross-border travel)

  • Employees of firms providing services that enable logistics operations 

  • Employees who repair and maintain aircraft, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers

  • Air transportation employees, including air traffic controllers, ramp personnel, aviation security, and aviation management

  • Workers who support the maintenance and operation of cargo by air transportation, including flight crews, maintenance, airport operations, and other on- and off- airport facilities workers

Further guidance from the CISA includes in the definition of “Transportation Systems Sector” the “Aviation” subsector which includes commercial and recreation aircraft (manned and unmanned), air traffic control systems, and about 19,700 airports, heliports, landing strips, and sea plane bases. In addition, the aviation mode includes a wide-variety of support services, such as aircraft repair stations, fueling facilities, navigation aids, and flight schools.

While the executive order includes these as aviation and transportation workers and activities that are allowed to continue, it is important to remember that the order limits the activities of the critical workforce and exempted businesses by allowing only those critical infrastructure workers and activities necessary to protect and sustain life.

Permissible Activities and New Requirements for Critical Infrastructure Workers, Including Aviation

Businesses that are permitted under the new executive order to continue in-person operations may do so subject to additional requirements, beyond the following:

  • Restricting the number of critical infrastructure workers to no more than those strictly necessary to perform its critical infrastructure functions

  • Promoting remote work to the fullest extent possible

  • Keeping at least six feet from other employees or patrons to the maximum extent possible

  • Increasing standards of facility cleaning and disinfecting

  • Adopting policies to prevent workers from entering the premises if they display symptoms of COVID-19 or have recently come into contact with someone who is known or suspected to have COVID-19

  • Implementing protocols to clean and disinfect in the event a critical infrastructure worker tests positive for COVID-19

In addition to these prior mandates, the new order requires employers, aviation among them, to develop a COVID-19 preparedness and response plan, consistent with the recommendations in Guidance on Preparing Workplaces for COVID-19 developed by the Occupational Health and Safety Administration.

These employers are still required to designate in writing – via letter, email, public website or other appropriate means – all employees they deem critical in supporting the noted critical infrastructure industries.   

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 104
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About this Author

Mary E. Comazzi Aviation and Unmanned Aerial Vehicles & Corporate Attorney Barnes & Thornburg Southfield, MI
Of Counsel

Mary Comazzi learned precisely what direction she wanted for her career by taking the right steps on the right course at the right time, and she strives to do the same for her clients. Mary’s general commercial and aviation clients appreciate her honesty, practicality and responsiveness in assessing their issues and helping address problems they are facing, in the air or on the ground.

Mary helps clients craft, negotiate and document mergers, acquisitions, reorganizations, joint ventures, and other complex commercial transactions. She also has extensive experience structuring...

947-215-1319
Todd Dixon Commercial Litigation & Aviation Attorney
Associate

Todd A. Dixon is an attorney in Barnes & Thornburg's Grand Rapids and Indianapolis offices and focuses his practice on commercial litigation and aviation law.

Todd's practice encompasses a wide variety of aviation law practice areas. He has structured aviation transactions, including domestic and foreign-based aircraft purchase and sale transactions, like-kind exchanges, timeshare agreements, interchange agreements, joint and fractional ownership agreements, personal and executive use policies, FAA registrations, Capetown International Registry, and aircraft leasing transactions. Todd also provides legal counsel on aviation-related issues including aircraft ownership structures, federal excise tax planning, state sales and use tax planning, and depreciation planning. Todd frequently advises on aviation insurance coverage matters, warranty matters, ongoing service requirements, and regulatory requirements and enforcement matters.

In addition to his transactional practice, Todd represents clients in complex aviation lawsuits.

Prior to embarking on his legal career, Todd was a career military officer and pilot. During his twenty-year active-duty United States Air Force career, he amassed more than 2,000 flying hours, primarily in KC-135 and C-12 aircraft, operated in multiple combat environments throughout the world. Todd retired from the Air Force as a Lieutenant Colonel. Trained and experienced in problem solving and accustomed to working in a fast-paced, unforgiving, and high stakes environment, he has leveraged that experience to provide timely, accurate, and focused legal services to clients.

Todd is extremely active in the legal community, specifically in the area of aviation law.

A leader in pro bono work, he provides substantial legal services to numerous nonprofit organizations and has been active in the Southern District of Indiana's Pro Bono Program.

317-231-7352
Clifford G. Maine, Barnes Thornburg Law Firm, Grand Rapids, Corporate Law Attorney
Partner

Clifford G. Maine is chairman of the firm’s Aviation Law Group. Mr. Maine's practice encompasses a wide variety of aviation law practice areas. He serves as general counsel to numerous aviation organizations, including the Southwest Michigan Regional Airport Authority.

Mr. Maine’s aviation clients include some of the largest corporate flight departments in the world. He has structured numerous aviation transactions, including domestic and foreign-based aircraft purchase and sale transactions, like-kind exchanges, timeshare agreements,...

616-742-3944
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