Seyfarth Synopsis: Following an uptick in confirmed diagnoses of COVID-19 and the State’s first deaths from the virus, Governor Mike DeWine announced an Ohio Department Of Health “Director’s Order” on March 22, 2020. All persons living in the State of Ohio must stay at home beginning March 23, 2020 through April 6, 2020 unless engaging in specific essential personal activities, performing work for essential businesses and operations as defined by the Order, or otherwise performing a narrow list of limited, critical tasks for employers.
On March 22, 2020, Ohio Department of Health Director Amy Acton, M.D. issued a Director’s Order for all persons living in the State of Ohio to stay at home from 11:59 p.m. on March 23, 2020 through 11:59 p.m. April 6, 2020, except to engage in specifically authorized “Essential Activities.” Enforceable by State and local law enforcement, the Order permits residents to seek health and safety supplies and services, to acquire other necessary supplies and services, to engage in outdoor activity with social distancing, and to perform certain limited types of work for employers including healthcare and public health operations, human services operations (such as care facilities), essential governmental functions, and for-profit, non-profit, or educational entities identified as “Essential Businesses or Operations.”
The Order defines Essential Businesses or Operations as follows:
Critical infrastructure workers, as defined by the Department of Homeland Security, Cybersecurity & Infrastructure Security Agency;
Stores selling groceries and medicine, including stores selling fresh and prepared foods, alcoholic and non-alcoholic beverages, household consumer products (such as cleaning or hygienic products), prescription and non-prescription medications, and to sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations; as well as their supply chain and administrative support operations;
Food, beverage, and licensed marijuana production and agriculture;
Organizations that provide charitable and social services;
Religious entities including facilities, groups, and gatherings including weddings and funerals;
Media and media services;
First amendment protected speech, which is not defined by the Order;
Gas stations and businesses needed for transportation, including auto, farm, construction, boat and bicycle sales and repair;
Financial and insurance institutions, including among others banks, lenders, pawnbrokers, credit unions, appraisers, title companies, brokers, financial markets, insurance companies, underwriters, agents, brokers and claims services;
Hardware and supply stores;
Critical trades, including among others building and construction, plumbers, electricians, exterminators, cleaners and janitorial services for commercial and government properties, security, engineers, painting, relocation HVAC and other such services that are necessary to maintaining the safety, sanitation, and essential operations of residences, Essential Activities, and Essential Businesses and Operations;
Mail, post, shipping, logistics, delivery and pick-up services;
Public and private educational institutions;
Laundry services;
Restaurants for consumption off-premises, including facilities that prepare food for delivery, drive-through, carry-out and pick-up, including school provision of meals;
Businesses selling, manufacturing or supplying those supplies needed for persons to work from home;
Businesses selling, manufacturing or supplying those supplies needed to operate Essential Businesses and Operations;
Commercial and consumer transportation services;
Home-based care services;
Residential facilities and shelters;
Professional services, such as legal, accounting, insurance and real estate services;
Manufacture, distribution and supply chain for critical products and industries, such as pharmaceutical, technology, health care, waste pick-up, agriculture, food and beverage, transportation, energy, steel, petroleum, mining, construction, national defense and communications and other products used by Essential Businesses and Operations;
Critical labor union functions;
Hotels and motels, to the extent used for lodging or food services; and
Funeral services.
Reflecting Governor DeWine’s concern to balance health and safety with preserving Ohio’s economy during the pandemic, the Essential Businesses and Operations list is extensive and detailed. However, other “non-essential businesses and operations” must cease, except for minimum basic operations such as preserving inventory or physical plant, or ensuring payroll, benefits, or telecommuting.
The Order further provides a list of actions for businesses and employers to take, including allowing telecommuting, encouraging sick employees to stay home, updating sick leave policies to be “flexible and non-punitive,” performing enhanced cleanings, reinforcing key messages to employees about safety and hygiene, and to being prepared to “change business practices” if needed to maintain critical operations. The Order also authorized local health departments to respond in writing to any questions from enforcement officials regarding interpretation of the Order.
We will continue to monitor developments further effecting employers doing business in Ohio, and encourage employers to reach out with questions.
