PERSPECTIVE: Businesses face tough questions about “essential services” during the pandemic

State and local government leaders are issuing “shelter-in-place” orders in response to the coronavirus pandemic. These orders generally require “non-essential” workers to stay at home, which raises many questions for businesses.

Although some mandates define “essential servicesthe vast majority are flexible, given the scope of American business. Companies are struggling to determine if they can continue to operate. They want to stay open, but must also keep employees safe and comply with lawful orders.

They face difficult questions: if we are not expressly covered, is there relief? What if we don’t follow the rules? Or if we misinterpret the definition of “essential”? Do the orders have bite, and if not, should they be ignored?

If orders alone are not effective, interactions between citizens and government will increase, as law enforcement and health officials attempt to identify and enforce their shelter-in-place mandates.

Companies that have chosen to read the ambiguities in their favor may be challenged and should be prepared to respond honestly and persuasively. Those operating in states and municipalities will face an even more difficult task in complying with the dizzying array of incongruous orders.

National and local application

State and local leaders are committed to enforcing shelter-in-place orders if necessary. In the words of New York Governor Andrew Cuomo (D), “These are legal provisions. They will be applied. There will be a civil fine and mandatory closure for any business. . . improper. »

Similarly, Pennsylvania Gov. Tom Wolf (D) announced state police would enforce his stay-at-home order. In California, the National Guard and state police have arrested essential workers and sent them home, despite presenting letters from their employers explaining their critical role or task. State attorneys general also monitor corporate activities during this time and may use their own enforcement powers. For example, 33 state AGs warned Amazon, Craigslist, eBay, Facebook and Walmart about price gouging. Illegal price gouging during crises is common, but so is aggressive enforcement of GAs, which have the power to impose severe civil penalties and revoke business licenses.

To date, law enforcement officials have primarily engaged in educational efforts, giving individuals and businesses time to adapt to these unprecedented changes. Law enforcement wants to let it be known that they mean business and expect people to stay home.

Likewise, officials collect information about businesses that are truly essential, so that they can ensure the proper functioning of those businesses and more easily monitor movement to and from them. This intelligence will also serve as the basis for interviewing companies that do not have a clearly essential mission. Many states have published guidelines for first responders that businesses should read, as they can inform law enforcement priorities.

It is important to note that state and local health authorities (and to some extent the Occupational Safety and Health Administration) could also shut down a business under these orders, particularly if they determine that the fails to adhere to prophylactic guidelines, or if an employee tests positive for coronavirus.

Health officials will review businesses that remain open to ensure compliance with required safety measures. Companies must strictly adhere to the many health requirements in place, such as social distancing, temperature taking of employees upon arrival at the workplace, shift work, etc., and most importantly, document their historical mitigation efforts and contemporaries.

Although enforcement to date has been moderate, more serious action is inevitable if the crisis continues unabated. The emergency authorities the government relies on to shelter in place are the same authorities that allow more serious restrictions, such as monitored quarantines. In fact, U.S. Customs and Border Protection and U.S. Coast Guard officers are authorized to enforce federal public health quarantine orders.

Exemptions/derogations

One option for businesses not listed as “essential” under a particular order is to request a waiver. Many mandates provide a mechanism for requesting an exemption. For example, in Pennsylvania, companies can request a business closure waiver. Similarly, in Massachusetts and Connecticut, businesses wishing to specifically designate their business as “essential” can complete an online application.

However, these processes are slow and may be led by the same entities that issue shelter-in-place orders in the first place. As more non-essential businesses struggle to survive layoffs, retain customers and avoid bankruptcy, there is an incentive for the “essential” designation.

But, of course, the more active companies are, the greater the likelihood of perpetuating the spread of Covid-19. Express exceptions may be granted sparingly. And staying open pending a decision can be a real business risk, as each day, or even each employee, could be considered a separate breach.

What to expect

In the coming weeks, every business in the United States will likely be impacted by a current or upcoming shelter-in-place order. As the virus spreads and deaths increase, these orders will evolve and become more, not less, restrictive. There will also likely be greater enforcement efforts, clearer police presence and interactions, roadblocks, and possibly National Guard involvement.

Additionally, if aggressive efforts by California, New York, and Pennsylvania fail to “flatten the curve,” or if looser restrictions in Illinois, Ohio, or Nevada are abused, other states will employ probably strong enforcement action.

Conversely, if social distancing proves effective, states may resort to shelter-in-place orders sooner to reduce the spread of Covid-19. Indeed, roadblocks and enhanced patrols are already in place across Washington, D.C., and the police chief in San Jose, Calif., has warned that police are “looking to start” enforcement with “a citation criminal, business license suspension and health code”. quotes. »

As we enter this uncharted territory, companies should keep in mind that, like the orders themselves, enforcement will likely vary from jurisdiction to jurisdiction. Each order and its enabling legislation requires a case-by-case analysis to determine whether a particular company’s activities qualify as “essential”, what enforcement mechanisms (particularly against a company) exist, and whether that company could benefit. of a derogation.

Either way, businesses that decide to stay open must engage in reasoned decision-making, document their compliance with the many orders, and their rationale for being “essential.”

The signatory of each order is well aware of its impact on the economy and citizens, but the health consequences of Covid-19 simply outweigh the economic impact at this time. Companies should be mindful of this balance when making sound decisions to guard against scrutiny from regulators, health officials, and law enforcement. When our elected leaders say “stay home,” they really mean it.

This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.

Author Information

David Blake is a partner in the Denver office of Squire Patton Boggs. He currently chairs the firm’s state attorneys general practice and previously served as deputy chief attorney general in the office of Colorado Attorney General Cynthia H. Coffman.

Kristina Arianina is a senior partner in the firm’s Washington, DC office. As a member of the Government Investigations and White Collar Practice Group, she represents companies and executives in internal investigations, enforcement actions and commercial litigation.

Elizabeth Weil Shaw is a partner in the firm’s Government Investigations and White Collar Practice Group. She primarily assists her clients with law enforcement and government investigations, internal investigations and compliance reviews.

Michelle J. Kelley