Gov. DeWine’s Stay-at-Home order

On Sunday at 2 p.m., Governor DeWine issued a stay-at-home order (the “Order”), to take effect 11:59 p.m. Monday, continuing through April 6. Here is the order: Stay at Home Order – 3-22-20

In General

Although the scope is very broad, the exceptions are equally expansive. The plan has support from the Ohio Chamber of Commerce (larger companies) and the National Federation of Independent Business (small- and mid-size companies).

The upshot of the order is: Any businesses must close their facilities if they are not deemed “Essential Businesses and Operations.”

The question you need to ask: Is my company an “Essential Business and Operation”?

  • If no, you are required to cease all business operations, except Minimum Basic Operations (defined below).
  • If yes,
    • you are “encouraged” to remain open, and
    • you must add social-distancing precautions.

What is an Essential Business and Operation?

If you fit under this definition, you are not only permitted to stay open, but the governor has “encouraged” you to stay open.

CISA List – The most obvious list of essential businesses are those deemed critical by the U.S. Department of Homeland Security. Ohio’s law (unlike Pennsylvania’s) respects the federal definition, by exempting “essential critical infrastructure workers” (see complete list on pages 13-23 of the Order). The federal definition includes Department of Defense contractors, healthcare sector, transportation sector, communications sector, emergency services and many others. Read more on this topic here.

Other Essential Businesses – California issued a stay-at-home order last week. It exempted the federal CISA definition, and stopped there. Ohio’s order includes a much-expanded list of Essential Businesses and Operations, such as: stores that sell groceries or medicine, agriculture and food/beverage production, charitable/social services, religious entities, media, gas stations and auto repair, banks/insurance institutions, hardware/supply stores, building trades, mail/shipping services, education (provided there is 6 feet of social distancing), laundry services, restaurants (off-premises consumption only), businesses that sell work-from-home supplies, transportation services (airlines, Uber, etc.), home-based care, residential facilities and shelters for disabled people, professional services (law, accounting, real estate), labor unions, hotels/motels, and funeral homes.

Home-based work – Any home-based businesses may continue, and employees are not prohibited in working from home.

What are the Social Distancing Requirements?

If you are staying open, it is not business as usual. Rather, businesses must comply with Ohio’s new Social Distancing Requirements. These are:

  1. Designate 6-foot distances by tape, signage, etc. for employees and customers in lines to stay apart,
  2. Make hand sanitizer readily available for employees and customers,
  3. Establish separate operating hours for elderly and customers vulnerable to COVID-19, and
  4. Post online whether the facility is open and how to conduct business by phone or remotely.

What are Minimum Basic Operations?

A non-essential business may nonetheless take actions to protect the value of inventory and equipment, ensure security, process payroll and benefits, and enabling employees to work from home (“Minimum Basic Operations”). Even in undertaking Minimum Basic Operations, the company must observe Social Distancing Requirements.

Violations; Remedies

The Ohio Department of Health has jurisdiction to enforce the Order, with potential second-degree misdemeanor charges. Of potential greater importance, if an employee or customer is infected as a proximate result of a violation, a business risks claims of negligence per se. The monetary damages flowing from a tortious COVID-19 infection could be very significant (medical, pain and suffering, wrongful death).

NOTE: This post will be updated periodically. Please check back or contact your business attorney for further information.