By Michael K. Erickson
Since last Thursday, March 19th, at least twenty-two (22) states have required the cessation of in-person operations for non-essential businesses either as part of a Stay-At-Home order or other public health directive. Currently, these states are: California, Connecticut, Delaware, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Vermont, Washington, West Virginia, and Wisconsin. In many other states, certain counties have ordered the cessation of in-person operations for non-essential businesses.
Neither Utah nor any of its counties has issued a “Stay-At-Home” order or otherwise closed all non-essential businesses. Although the Utah Department of Health issued an order on March 17th prohibiting gatherings of more than 10 people, the Health Department revised its order on March 21st to clarify that the prohibition is only a recommendation and “should not be interpreted to suggest that a business should not have more than 10 employees in a single location.”
However, to prepare Utah businesses for the possibility of mandatory closures as seen in other states, we have reviewed the Stay-At-Home orders from those states to provide information that may be useful for our clients’ contingency planning. The circumstances are changing by the day, and you should consult legal counsel with any specific questions related to your business.
Each state is different. Some states, such as Kentucky, New Jersey, and Oregon, have limited closures primarily to retail businesses and entertainment and recreational businesses. Other states that have closed all non-essential businesses vary widely in how those businesses are defined. Most states, however, rely on the list of sixteen (16) “Essential Critical Infrastructure Workers” identified in the U.S. Cybersecurity and Infrastructure Security Agency (CISA) memorandum on March 19, 2020. The CISA guidelines instruct that these workers have a “special responsibility” to continue working.
Minimum Basic Operations for Non-Essential Businesses:
In many states, those non-essential businesses required to close may nevertheless maintain “minimum basic operations.” Generally, these minimum basic operations include those workers whose in-person presence is necessary to allow the business or operation to maintain the value of inventory and equipment, ensure security, process transactions such as payroll and employee benefits, or facilitate the ability of other workers to work remotely.
While California’s “Shelter-In-Place” order was “effective immediately,” most states’ Stay-At-Home orders allow one or two days before requiring mandatory closure. A few states—at least New York, Connecticut, and Pennsylvania—allow businesses not originally designated as essential to request being designated as essential. These waiver forms may request information regarding the basis for designating a business as essential, the number of workers necessary to continue operations, and plans for implementing the CDC’s guidance on workforce social distancing.
If you have any questions regarding how a possible Stay-At-Home order might impact your company’s operations in affected states, you should consult legal counsel. Rick Thaler and Mike Erickson, both members of Ray Quinney & Nebeker’s COVID-19 Response Team, are assisting clients with (1) determining whether their operations qualify as “Essential Critical Infrastructure,” (2) preparing memoranda that explain the basis for continuing operations under CISA guidelines and specific state orders, and (3) preparing letters to critical suppliers and vendors advising them of their vital role in maintaining critical infrastructure supply chains. They would be happy to assist you with any questions you may have.
This update features selected developments in the law. It should not be relied upon for substantive legal advice.