On Thursday, April 2, 2020, Gov. Brian Kemp added Georgia to the list of statewide shelter-in-place orders aimed at slowing the spread of COVID-19. Current reports estimate that as of April 6, 2020, Georgia has seen 6,742 infections and 219 deaths as a result of the pandemic. Gov. Kemp’s executive order (the Order) broadens and extends the governor’s more limited March 23 order and was effective as of 6 p.m. on Friday, April 3, 2020. The Order remains in place until 11:59 p.m. on Monday, April 13, 2020.

The Order replaces all previously issued city and countywide orders related to COVID-19 in favor of a statewide approach to combating this public health emergency. As a consequence, prior orders from cities, counties and municipalities are no longer effective to the extent they conflict with the Order. However, counties and municipalities are permitted to adopt ordinances or orders designed to enforce compliance with the Order.[1]

The Order largely curtails normal business operations

The Order limits Georgia residents and businesses to only those activities that are classified as essential services, necessary travel, critical infrastructure and minimum basic operations, as defined below:

1. Essential services: Essential services are defined in the Order as (1) obtaining necessary supplies and services such as food, medicine and sanitation items for family or household members; (2) family or household health and safety activities such as seeking medical services; and (3) engaging in outdoor activities, as long as a minimum of six feet is maintained between people who are not occupants of the same household.
2. Necessary travel: The Order dictates that travel should be limited to that required to conduct or participate in essential services, minimum basic operations or critical infrastructure.
3. Critical infrastructure: Critical infrastructure refers to businesses and organizations defined by the U.S. Department of Homeland Security (DHS) as the essential critical infrastructure workforce in its March 19 , 2020 guidance.[2] In addition to the types of organizations outlined by DHS, critical infrastructure also includes suppliers that provide essential goods and services to the critical infrastructure workforce, entities that provide legal services, and home hospice and nonprofit organizations that offer food distribution or other health or mental health services.
4. Minimum basic operations: Minimum basic operations are defined rather broadly by the Order, encompassing: (1) the minimum necessary activities to maintain the value of a business or organization; provide services, manage inventory, ensure safety and security, process payroll and other employee benefits, and related functions; (2) facilitating employees’ ability to work from home; and (3) instances where employees work outdoors without regular contact with other people. Notably, the Order contemplates that minimum basic operations may include staying open to the public subject to the other restrictions of the Order.

Individuals must shelter in place unless engaged in specified activities

With few limited exceptions, all Georgia residents and visitors are now required to shelter in place for the duration of the Order. This is significantly more restrictive than the governor’s previous order, which required only a few categories of vulnerable individuals to shelter in place.[3]

From April 3, 2020 at 6 p.m. through April 13, 2020 at 11:59 p.m., individuals are permitted to leave their homes or places of residence only if they (1) are engaged in essential services, (2) are performing necessary travel, (3) are engaged in the performance of or travel to and from the performance of minimum basic operations for an organization not defined as critical infrastructure, or (4) are part of the workforce for an organization defined as critical infrastructure.

Organizations that are considered critical infrastructure or require employees to report to work for minimum basic operations might want to consider providing employees with a letter outlining their role within the organization and the reason they are required to go into work.

The Order places notable restrictions on business operations, especially in the service industry

While the Order places serious restrictions on business operations statewide, some organizations may continue to operate under certain limited circumstances.

Certain activities are permitted

First, all critical infrastructure as defined above may remain open subject to the other restrictions in the Order. Additionally, even if an organization does not meet the definition of critical infrastructure, it still may remain open to conduct minimum basic operations. Unlike many of the previously issued city and countywide orders, the Order provides a fairly broad definition of minimum basic operations. Organizations hoping to continue operating should consider what minimum necessary activities would allow them to maintain the value of their business.

Some industries are facing serious limitations or complete closure

The service industry continues to be hit hard, with the Order mandating that all restaurants cease dine-in services, remaining open only for takeout, curbside pickup and delivery. Additionally, all gyms, fitness centers, bowling alleys, theaters, live performance venues, operators of amusement rides, body art studios, estheticians, hair designers, massage therapists and bars must close completely to the public for the duration of the Order.

Additionally, although not specifically addressed by the Order, demand has plummeted for ride-sharing services like Uber and Lyft as well as for travel-related industry services and other businesses that “help people do things.” Undoubtedly, these closures and limitations place an economic strain on many businesses and might require challenging decisions about how best to manage workforce personnel of all levels; working capital expense obligations, such as rent and supply commitments; and ultimately future operations.

To the contrary, businesses that “help people get things” (e.g., food delivery, grocery delivery, delivery of other goods) are thriving, given the Order and the recommendation by the federal government that individuals continue to practice social distancing through the end of April.[4]

Affected businesses should consider federal assistance programs

Businesses negatively impacted by COVID-19 may apply for small-business loans either through the Small Business Administration’s (SBA) Payroll Protection Program (PPP) or Economic Injury Disaster Loan (EIDL) program.[5] Importantly, PPP loans, unlike EIDLs, include loan forgiveness provisions that may forgive all or part of the loan amount. The federal government has taken steps to make the application process for obtaining COVID-19 assistance more streamlined and user friendly, including by placing the applications online, to facilitate swift access for small businesses already struggling.[6] Any business seeking or planning to seek financial aid through the PPP or other SBA financial assistance should complete these applications as soon as possible, as funds are expected to be depleted quickly. Finally, it is important to note that in certain circumstances, small-business owners may apply for both PPP loans and other SBA financial assistance such as EIDLs.

All businesses must implement measures to mitigate risk of exposure

All businesses permitted to continue operating must implement measures to mitigate the potential for exposure to or spread of COVID-19 among their workforce. The Order provides a non-exhaustive list of measures that an organization may implement, including but not limited to:

1. Screening or evaluating workers who exhibit signs of illness, such as a fever higher than 100.4 degrees Fahrenheit, a cough or shortness of breath.
2. Enhancing sanitation of the workplace.
3. Requiring handwashing or sanitation by workers.
4. Providing personal protective equipment as available and appropriate.
5. Prohibiting gatherings of workers during working hours.
6. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other area where social distancing is possible.
7. Holding meetings virtually.

Suspending the use of personal identification number (PIN) pads, PIN entry devices, electronic signature capture and other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and agencies.

Every organization needs to consider which measures are most appropriate to mitigate the spread of COVID-19 in its workplace. Businesses wishing to continue operations under the Order should seek individual legal counsel to ensure compliance, both with the Order and with non-COVID-19-related employment laws.

It is important to note that some mitigation measures might implicate other employment obligations. For example, an organization whose workers leave the building for meal breaks should consider its obligation under the Fair Labor Standards Act to pay employees for the additional time needed to go through security. Organizations need to determine which measures adequately balance protecting the interests of the business and maintaining a safe and secure work environment.[7]

[1] Violations of the Order are considered a misdemeanor. While specific penalties are not listed, the Order dictates that enforcement officials should “take reasonable steps to provide notice prior to issuing a citation or making an arrest.” It isn’t entirely clear whether penalties put in place for violation of previously issued county or municipality orders remain enforceable to the extent they align with the Order. Anyone with concerns related to enforcement mechanisms should seek legal advice that can be provided on an individual basis.
[2] A complete list of businesses considered critical infrastructure by DHS can be found here.
[3] The previous order required only those individuals residing in nursing homes or long-term care facilities, those with chronic lung disease, those undergoing cancer treatment, and those with a confirmed or suspected positive diagnosis of COVID-19 to shelter in place.
[4] The White House Coronavirus Task Force has provided guidelines for fighting the spread of coronavirus here. During his March 29, 2020 press briefing, President Donald Trump recommended that social distancing continue until at least the end of April.
[5] Businesses can find additional information about the Coronavirus Aid, Relief, and Economic Security Act and other COVID-19-related questions at BakerHostetler’s Coronavirus (COVID-19) Resource Center here.
[6] The PPP application can be found here and the EIDL application can be found here.
[7] Baker & Hostetler LLP publications are intended to inform our clients and other friends of the firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience.