March 26, 2020
A growing number of states and cities have issued mandatory “stay at home” or “shelter in place” orders, and others have ordered that all “nonessential” work stop in their areas. While these orders are vital to the fight against the spread of COVID-19, they are incredibly disruptive to employers and employees alike. Each of these state and city orders have their own specific language, but generally, these orders have the following features:
- People must stay in their homes other than for “essential” activities, such as grocery shopping, seeking medical care or going to work at an “essential” business.
- Business that are not “essential” must cease or restrict operations to remote work.
Both the federal government and the states and cities that have issued such orders have guidance on what constitutes “essential” business. While the federal guidelines are not binding on the states (Pennsylvania and the City of Miami have their own lists), states such as California and Illinois have deferred to or incorporated the federal guidelines into their determination of “essential” business, and the U.S. Chamber of Commerce has urged all states and cities to issue uniform standards based on the federal guidelines. Therefore, it is helpful to review the federal guidelines, which are issued by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”).
The CISA guidelines identify 16 critical infrastructure sectors that are considered so vital that their incapacity or destruction would have a debilitating effect on security, economic security, and/or public health or safety. The industries these sectors support include healthcare, telecommunications, information technology, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement and public works. The CISA guidelines also stress that while operations in these “critical” businesses must continue, they should be appropriately modified to account for the workforce and customer protection guidance and strategies to limit disease spread issued by the Centers for Disease Control, such as maintaining social distancing and separating staff by off-setting shift hours or days.
Every business should prepare for the possible implementation of such an order, regardless of the current COVID-19 situation in their state. Steps that a business can take now include reviewing the CISA guidance and orders issued in states and/or cities in which the business operates to determine if the business would qualify as “essential”, drafting notices to employees, customers and suppliers regarding the status of the business as “essential”/”nonessential”, preparing documentation for employees to present if stopped by police or public health officials charged with enforcing such an order, and looking into federal and state assistance offered to support business impacted by such orders.
This situation is constantly evolving, and we will continue to keep you informed of further developments. If you have any questions about this alert, please contact the Business and Corporate members of our COVID-19 Response Team identified below.