On March 23, as part of his continuing effort to combat the COVID-19 emergency, Georgia’s Gov. Brian Kemp issued a “shelter in place order” for certain vulnerable Georgians. This order took effect on March 24 at noon and stays in effect through April 6. The order may be extended or be amended as circumstances evolve. According to recent reports, there have been 32 deaths and 1,026 confirmed cases of COVID-19 in the state of Georgia.

With respect to businesses, the most critical portion of Kemp’s order is that no business may allow more than 10 people to gather at a single location if any person is within six feet of another individual. The order additionally provides for the closure of all bars and nightclubs, and the Georgia Department of Public Health is empowered to close any entity for noncompliance.

The order also includes a mandate requiring vulnerable Georgians to isolate or quarantine in their home or place of residence. This mandate, however, applies to only a subset of Georgians, which includes the following populations:

1. Those persons who live in a nursing home or long-term care facility.
2. Those persons who have chronic lung disease.
3. Those persons who are currently undergoing cancer treatment.
4. Those persons included under Department of Public Health Administrative Order 03.22.20.01.[1]

While Kemp’s order is less restrictive for businesses than actions taken in other states, municipalities around Georgia have taken a more aggressive approach by mandating the closure of businesses not deemed “essential businesses.” For example, both the city of Atlanta and DeKalb County, as well as other municipalities and counties throughout Georgia, have issued orders requiring citizens to shelter in place and significantly limiting business activity. Thus far, the definitions of essential businesses contained in these orders have been functionally identical.[2]

To illustrate, city of Atlanta Mayor Keisha Lance Bottoms on March 23 issued a shelter in place order for all individuals currently living in the city of Atlanta. This order took effect on March 24 at noon. The order requires all businesses within the jurisdictional limits of the city of Atlanta not deemed essential businesses to cease all activities beyond “minimum basic operations.”

The city of Atlanta order defines essential businesses as follows:

1. Healthcare operations[3] and essential infrastructure.[4]
2. Grocery stores, farmers markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; pet supplies; fresh meats, fish and poultry; and any other household consumer products. This includes stores that sell groceries in addition to other non-grocery products and products necessary for maintaining the safety, sanitation and essential operation of residences.
3. Food cultivation, including farming, livestock and fishing.
4. Businesses that provide food, shelter, social services and other necessities of life for economically disadvantaged or otherwise needy individuals.
5. Newspapers, television, radio and other media services.
6. Gas stations and auto-supply, auto-repair and related facilities.
7. Banks and related financial institutions.
8. Hardware stores.
9. Lodging businesses.
10. Plumbers, electricians, exterminators and other service providers who provide services that are necessary for maintaining the safety, sanitation and essential operation of residences, essential activities and essential businesses.
11. Businesses providing mailing and shipping services, including post office boxes.
12. Educational institutions for purposes of facilitating distance learning or performing essential functions.
13. Laundromats, dry cleaners and laundry service providers.
14. Restaurants and other facilities that prepare and serve food, but only for delivery or takeout.
15. Businesses that supply products for people to work from home.
16. Businesses that supply other essential businesses with the support or supplies necessary to operate.
17. Businesses that ship or deliver groceries, food, goods or services directly to residences.
18. Home-based care for seniors, adults or children.
19. Residential facilities and shelters for seniors, adults and children.
20. Professional services, such as legal or accounting services.
21. Child care facilities.
22. Utilities, water, sewer, gas, electrical, oil refining, roads and highways, railroads, public transportation, taxi/rideshare, solid waste collection and removal, internet, and telecommunications systems.

Minimum basic operations are defined as:

1. The minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or to carry out related functions.
2. The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

If My Business Is Nonessential, What Can I do?

If your business is in a municipality that has enacted an order limiting operations to essential businesses, please review the order carefully. These orders typically provide some relief. For example, both the city of Atlanta and Dekalb County are allowing businesses to continue normal operations to the extent employees can work remotely. Others also may allow businesses to continue operations to the extent necessary to ensure business inventory is preserved and other essential functions continue.

Conclusion: Take Immediate Steps To Determine Which Restrictions Apply to Your Business, and Comply Accordingly To Protect Public Safety and Your Business

As Kemp has yet to issue a statewide closure order, businesses in Georgia must determine which restrictions apply to them and comply accordingly. Any business should first confer with an attorney before ceasing business operations and also should consider changes to federal laws related to employees, including leave. Finally, even if your business is subject to a closure order because of where it is located within the state of Georgia, it is important to remember that you may nonetheless operate remotely.

[1] Department of Public Health Order 03.22.20.01 orders isolation for the following categories of individuals: (1) persons with known COVID-19; (2) persons with suspected COVID-19; and (3) persons with COVID-19 exposure likely to result in infection.
[2] For example, the definitions of essential businesses used by the city of Atlanta, Athens-Clarke County, DeKalb County, Dougherty County and Floyd County appear to capture the same subset of exempt business entities.
[3] The city of Atlanta order defines “Healthcare Operations” as the following: “hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers, or any related and/or ancillary healthcare services. ‘Healthcare Operations’ also includes veterinary care and all healthcare services provided to animals. This exemption shall be construed broadly to avoid any impacts to the delivery of healthcare, broadly defined. ‘Healthcare Operations’ does not include fitness and exercise gyms and similar facilities.”
[4] The city of Atlanta order defines “Essential Infrastructure” as including but not being limited to “public works construction, airport operations, utility, water, sewer, gas, electrical, oil refining, roads and highways, railroads, public transportation, taxi/rideshare, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services), provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined herein, to the extent possible.”