On Sunday, March 22, 2020, Governor DeWine announced a new “Stay at Home Order” issued by Ohio Health Director Amy Acton, MD, MPH (the “Order”). In addition to severely restricting the ability of individuals in Ohio to leave their residences for two weeks, the Order contains specific and dramatic instructions to Ohio employers on managing their workforces. The employment-related restriction in the Order includes numerous exceptions. Below are details concerning the Order and its impact on essentially all private businesses in the state.
Effective date: March 23, 2020 at 11:59 PM.
End date: April 6, 2020 at 11:59 PM (unless rescinded or modified).
Non-essential Businesses and Operations. Except as noted below (see “Essential Businesses and Operations”), all public and private businesses are required to cease all activities within Ohio:
- All non-essential businesses may still maintain “minimum basic services,” so long as they also observe “social distancing” (as defined below) for both employees and members of the public.
- All non-essential businesses can (and should) still permit employees to work from home, if practicable. (According to the Order, “For clarity, businesses, including home-based businesses, may also continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home).”)
- “Minimum basic services” include work performed by employees responsible for:
- Maintaining the value of the business’s inventory;
- Preserving the condition of the business’s physical plant and equipment;
- Ensuring security;
- Processing payroll and employee benefits; and
- Facilitating employees of the business being able to continue to work remotely from their residences.
Essential Businesses and Operations. The Order provides an exemption for “Essential Businesses and Operations” (including various governmental, human services, and healthcare operations), stating the “individuals may leave their residence … to perform” work for the following types of employers:
a. Homeland Security Critical Infrastructure List. Businesses and industries listed in the March 19, 2020, U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.” (Many or all of these are also included in the more detailed Ohio-specific list detailed below. Linked here: https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf )
b. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, prepared food, alcoholic and nonalcoholic beverages, any other household consumer products (such as cleaning and personal care products), and specifically includes their supply chain and administrative support operations. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and other Essential Businesses and Operations;
c. Food, beverage, and licensed marijuana production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
d. Organizations that provide charitable and social services. Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities;
e. Religious entities. Religious facilities, entities and groups and religious gatherings, including weddings and funerals.
f. Media. Newspapers, television, radio, and other media services;
g. First amendment protected speech.
h. Gas stations and businesses needed for transportation. Gas stations and auto supply, auto repair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities;
i. Financial and insurance institutions. Banks, currency exchanges, consumer lenders, including but not limited to pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, payday lenders, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products. Also insurance companies, underwriters, agents, brokers, and related insurance claims and agency services;
j. Hardware and supply stores. Hardware stores and businesses that sell electrical, plumbing, and heating material;
k. Critical trades. Building and construction tradesmen and tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other Essential Businesses and Operations;
l. Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods, vehicles or services to end users or through commercial channels;
m. Educational institutions. Educational institutions-including public and private pre-K-12 schools, colleges, and universities for purposes of facilitating distance learning, performing critical research, or performing essential functions, provided that social distancing of six feet per person is maintained to the greatest extent possible;
n. Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
o. Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so under the Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided or at any other gathering site due to the virus’s propensity to physically impact surfaces and personal property;
p. Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home;
q. Supplies for Other Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
r. Transportation. Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, marinas, docks, boat storage, and other private, public, and commercial transportation and logistics providers necessary for purposes expressly authorized in the Order;
s. Home-based care and services. Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
t. Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, pets, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
u. Professional services. Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
v. Manufacture, distribution, and supply chain for critical products and industries. Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other Essential Businesses and Operations.
w. Critical labor union functions. Labor union essential activities including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in other Essential Businesses and Operations, provided that these checks should be done by telephone or remotely where possible.
x. Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
y. Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related services.
Social Distancing Requirements. Essential Businesses and Operations and businesses engaged in “Minimum Basic Operations” must take proactive measures to ensure compliance with social distancing requirements, including where possible:
- Designating six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
- Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
- Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
- Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
As noted above, the Stay at Home Order will expire on April 6, 2020 at 11:59 PM, unless extended or modified before then.
The Labor and Employment lawyers at Coolidge Wall will post additional analysis about employer responsibilities under the Families First Coronavirus Response Act, as well as information updates on other federal and state developments related to the coronavirus outbreak. Should you have specific questions, please contact us.
Contributing attorneys:
Marc L. Fleischauer
David P. Pierce
Benjamin A. Mazer
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.
