By Martin P. Greene
Contributors John C. (“Jay”) Maloney, Jr., Agnes Sullivan, Giselle B. (“Gigi”) May, Mark J. JohnstonClient Alert from the Zuber Lawler COVID-19 Task ForceThese are challenging times for employers and employees alike in navigating the host of changes necessitated by COVID-19, the respiratory disease caused by the SARS-CoV-2 virus.Zuber Lawler has created a task force to provide greater service to our clients in dealing with the myriad employment decisions that now must be made for the protection of all involved. These alerts are designed to provide guidance to decision-makers on the most challenging issues presented and will be published on an as-needed basis.This first in the series focuses on the executive orders issued in a number of states relating to the conduct of business and mobility of residents. They are variously referred to as “stay-at-home orders”. While we have highlighted those nearest to our offices, we welcome your inquiries as to specific additional locations. It is likely you will need a more in-depth analysis before you make decisions, but the following information is intended to provide some initial guidance. These descriptions are intentionally short because we realize you are trying to focus on a number of important matters. We remain available to assist further.Following is a brief discussion of stay-at-home orders issued by the governors of California, Illinois, Indiana, New Jersey and New York.California:
On March 19, 2020, California Governor Gavin Newsom issued Executive Order N-33-20, instructing all residents to immediately heed the State public health directives issued earlier that day to stay home, except as needed to maintain the continuity of operations of the federal critical infrastructure sectors and such additional sectors as the State Public Health Officer may designate as critical to protect the health and well-being of all Californians.Thereafter, the State Public Health Officer designated workers in the following 13 sectors as “Essential Critical Infrastructure Workers”:
- Healthcare and Public Health – This category includes, among others, healthcare providers and caregivers, hospital personnel, behavioral health workers, workers supporting veterinary hospitals, pharmacy employees necessary for filling prescriptions, as well as manufacturers, technicians, logistics and warehouse operators, and distributors of medical and personal protective equipment.
- Emergency Service – This includes law enforcement, first responders and workers responsible for maintaining critical public infrastructure such as roads and water mains, as well as service providers such as plumbers, electricians, exterminators and other services providers who maintain the safety and essential operation of homes.
- Food and Agriculture – This includes workers supporting groceries, pharmacies and restaurants that provide takeout service, food manufacturing and their supplier employees, farmworkers, along with associated logistics and transportation workers, and cannabis retailers. This category also includes employees of companies engaged in the production of chemicals, medicines, vaccines and other substances used by the food and agriculture industry.
- Energy – This category includes essential worker categories for the electricity, petroleum and natural gas industries. It includes, among others, utility workers, reliability engineers, workers needed for safe operations at nuclear generation, petroleum security operations center employers, and natural gas transmission and distribution pipelines.
- Water and Wastewater – This category includes operational staff for water supply and wastewater treatment systems and facilities.
- Transportation and Logistics – This category includes workers in the following subsectors: aviation, highways, maritime, mass transit and passenger rail, pipeline, freight rail and postal/shipping. It includes employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, and truck stops and rest area workers, among others.
- Communications and Information Technology – This category is defined as the sector that provides products and services that support the efficient operations of our global information-based society. The IT Sector is a function-based sector that includes both physical equipment and virtual systems, as well as network operations.
- Other Community-Based Government Operations and Essential Functions – This category includes both government and private workers engaged in a broad range of functions, including, for instance, construction, weather forecasters, security staff, as well as childcare providers.
- Critical Manufacturing – This category includes several industries that serve the core of this sector, including designated jobs in primary metals manufacturing, machinery manufacturing, electric equipment, appliance and component manufacturing, and transportation equipment manufacturing products. It includes workers necessary for manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, and food and agriculture, among others.
- Hazardous Materials – This category includes workers at nuclear facilities, and workers handling medical waste and hazardous materials management, response and cleanup.
- Financial Services – This category includes workers in financial services, including depository institutions, as well as retail banking operations. Specifically, it includes workers needed to provide consumer access to banking and lending services.
- Chemicals – This category includes workers in designated jobs in basic chemicals, specialty chemicals, agricultural chemicals, pharmaceuticals and consumer products, including workers supporting the chemical and industrial gas supply chains, workers at chemical manufacturing plants and laboratories, and workers in distribution facilities, among others.
- Defense Industrial Base – This category includes workers in public and private sector entities that provide products and services that are essential to mobilize, deploy and sustain military operations. Specifically, it includes but is not limited to, individuals in the aerospace industry, as well as mechanical and software engineers, manufacturing/production workers, as well as aircraft and weapon system mechanics and maintainers, among others.
A detailed list of Essential Critical Infrastructure Workers can be accessed HERE.
Additionally, the Los Angeles County “Safer At Home” Order for Control of COVID-19 lists 23 categories of businesses as “essential.” That order can be accessed HERE.
Illinois:
In Illinois, pursuant to Executive Order No. 2020-10 (otherwise known as “COVID-19 Executive Order No. 8”), the state is under a stay-at-home order. The order mandates that Illinois residents stay at home, observe “social distancing” requirements, and that all non-essential business and operations cease all activities from March 21, at 5:00 p.m. through April 7, 2020.
With regard to business closures, businesses deemed “non-essential” can continue to operate but only if they can do so through their employees working from home. Businesses deemed essential are exempt from the closure requirement. Some of the businesses that have been granted this designation outside of the standard healthcare and infrastructure categories, include:
- Stores that sell groceries, medicine, gas, hardware, and “supplies”;
- Food, beverage, and cannabis production and agriculture;
- Organizations that provide charitable and social services;
- Media organizations;
- Businesses needed for transportation (including Uber and Lyft);
- Financial institutions;
- Mail, post, shipping, logistics, delivery, and pick-up services;
- “Critical trades” such as building and construction (among others); and
- Manufacturing, distribution, and supply chain operations for critical products and industries.
The list has since been amended by Executive Order No. 2020-11 to also include daycare centers. The full list of businesses that have been granted this designation in Illinois by executive order can be found HERE, as further supplemented HERE. Businesses and employees with questions can call the Illinois Department of Commerce and Economic Opportunity COVID-19 hotline at 1-800-252-2923 or email CEO.support@illinois.gov
Indiana:
Indiana has issued a stay-at-home order (Indiana Executive Order 20-08) similar to those in other states, also exempting businesses designated as “essential.” Indiana’s stay-at-home order took effect on March 24 at 11:59 p.m. EST, and is currently set to expire on April 6 at 11:59 p.m. EST. Some of the businesses that have been granted this designation outside of the standard healthcare and infrastructure categories, include:
- Grocery stores, pharmacies, supermarkets, farm stands and convenience and hardware stores;
- Food and beverage manufacturers, as well as businesses involved in food and/or beverage production and agriculture;
- Organizations that provide charitable and social services;
- Newspapers, TV, radio and other media services;
- Businesses needed for transportation (including Uber and Lyft);
- Financial institutions such as banks;
- Mail, post, shipping, logistics, delivery, and pick-up services;
- Professional services such as legal, accounting, insurance and real estate services; and
- Manufacturing, distribution, and supply chain operations for critical products and industries.
The full list of businesses that have been deemed essential under Indiana’s stay-at-home executive order can be found HERE. Indiana has not provided a dedicated hotline for inquiries regarding essential business classifications, but general questions from the public or healthcare provider inquiries about COVID-19 may be directed to the ISDH COVID-19 Call Center at the toll-free number 877-826-0011 (available 24/7) or email epiresource@isdh.in.gov.
New York:
New York Governor Andrew M. Cuomo has issued a series of increasingly strict executive orders limiting business and other activities in New York state due to the COVID-19 emergency. The first was Executive Order No. 202, issued on March 7, which declared a disaster emergency throughout New York. Executive Order No. 202.6, issued on March 18, ordered businesses to utilize telecommuting and work-at-home procedures to the greatest extent possible and reduce in-person workforces by 50% by March 20.
On March 20, Governor Cuomo signed Executive Order No. 202.8, which “put New York State on PAUSE” effective Sunday, March 22, at 8:00 p.m., effectively closing all non-essential businesses state-wide through April 19, 2020.
Order No. 202.8 also ordered the cancelation or postponement of all non-essential gatherings of individuals of any size for any reason and mandated that individuals practice social distancing in public by maintaining at least six feet of distance between themselves and others.
Any business providing essential services or functions, whether qualified as an essential business itself or not, is exempt from the “PAUSE” restrictions; however such businesses must facilitate social distancing practices by all customers and clients.
The State subsequently issued an official guidance on determining whether a business is subject to workforce reduction under the current restrictions, which is available HERE.
A updated list of Frequently Asked Questions about the New York restrictions is available HERE.
New Jersey:
Effective Saturday, March 21, New Jersey Governor Phil Murphy signed Executive Order No. 107 to mitigate the effect of COVID-19 by directing all residents to stay at home until further notice.
Governor Murphy’s Executive Order further directs the closure of all non-essential retail businesses to the public, with the exceptions of:
- Grocery stores, farmers’ markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
- Pharmacies and medical marijuana dispensaries;
- Medical supply stores;
- Gas stations;
- Convenience stores;
- Ancillary stores within healthcare facilities;
- Hardware and home improvement stores;
- Banks and other financial institutions;
- Laundromats and dry-cleaning services;
- Stores that principally sell supplies for children under five years;
- Pet stores;
- Liquor stores;
- Car dealerships, but only for auto maintenance and repair, and auto mechanics;
- Printing and office supply shops; and
- Mail and delivery stores.
Order No. 107, along with Executive Order 108, which was signed on March 21, 2020 and invalidates any local or county provisions in conflict with Order 107, are to remain in effect until further notice.
Suggestions for Employers
If upon discussion among high level management and your counsel, it is determined that your business or some of your employees are “essential”, it would be helpful for employees to carry with them not only the company’s ID card, but also a statement from a manager (such as the human resources manager) stating the employee is exempted from the applicable stay-at-home order and giving the reasons why. A manger’s contact number should also be included.
This will assist state and local authorities in deciding who is in compliance with the orders and it will provide easier employee access to buildings under heightened security. A further benefit will be that it shows the employer understands it is possible that not all employees will have the same quality of interactions with law enforcement. Employees are likely to view this as supportive of them. |
Partner, Zuber Lawler