COVID-19 in 19: Shut Down, Shelter in Place and Defining "Essential Business"

Part of our continuing series of 19-minute teleconferences on the impacts of COVID-19

Hope Goldstein (Employment and Labor) and Tom Lee (Environmental) discussed Shutdown and Shelter in Place orders, the definition of 'Essential Businesses' allowed to operate under such orders, and what businesses can do to reduce the impact of these new orders on their operations.

Key Takeaways from the Teleconference Include:

• The situation is fluid.
  • At the beginning of last week were there were no orders preventing non-recreational businesses from operating. After seven days twelve states, accounting for over 40% of the nation’s GDP, had issued statewide orders impacting all businesses.
  • Even in jurisdictions where orders have been passed, the definition of Essential Businesses continues to develop as further guidance is issued by regulators.
  • In some states, county and metropolitan officials have issued orders which add requirements beyond the statewide orders, so attention to local action is important.
  • In other states, only local orders have issued
• There are some common themes in the definition of Essential Businesses, but it is essential to take a hard look at the language of your state and/or local order, because they vary.
  • The following sectors are usually allowed to continue in-person operations: the food supply chain, power production, healthcare services including pharmaceuticals, transportation, financial services and banks, IT systems and communication networks, first responders and safety officials
  • Recreational and amusement businesses are usually not allowed to continue in-person operations. These include movie theaters, gyms, music venues, in-restaurant dining, and bars.
• You can take steps to manage your shutdown risk:
  • Make a list of all of your facilities and the specific work that is done at each facility.
  • Carefully review all state and local orders that apply to each facility to understand the specific definition of businesses that are allowed to continue in-person operations.
  • If you believe you are an essential business, consider the following:
    • Identify those who can work remotely.
    • Messaging to employees about continued operations.
    • Employee travel letters and ID cards
    • A letter of explanation held at the facility to be provided to inspectors.
    • Letters to upstream suppliers and downstream customers notifying them of your determination and continued operation.
    • Outreach to relevant government agencies to clarify the interpretation of the applicable order(s).
  • If you believe you are not an essential business, and need to suspend in person operations be prepared to address:
    • Think about who can work remotely.
    • Closures, furloughs, layoffs, leaves of absence
    • Application of existing company policies and procedures to time off
    • New Federal Paid Leave Law, effective April 2, 2020
    • State and city paid leave laws
    • Unemployment issues, e.g., GA mandate and NY waiver of waiting period
    • WARN and mini-WARN obligations
    • Union demands
• We are here to help. Our COVID-19 Shutdown task force, as well as the rest of our COVID-19 teams is available to help you navigate these challenging times and keep you updated on new regulations as they are passed.