Within the past week, California, Connecticut, Delaware, Illinois, Indiana, Kentucky, Louisiana, ‎Massachusetts, Maryland, Michigan, New Jersey, New York, Ohio, and Pennsylvania have each ‎prohibited all “non-essential” public and private employees from commuting to work as a result ‎of COVID-19. With rumors and speculation mounting that many other states may soon follow ‎suit, employers throughout the country will need to determine which of their employees, if any, ‎qualify for each state’s unique exemptions on employee travel. ‎

For many businesses, this means that they must determine whether they operate within the ‎varying definitions of essential services. As provided below, both the federal government and all ‎noted states ‎have issued guidance on what constitutes essential services in their jurisdiction. ‎California and Louisiana have deferred to ‎the federal government’s publications on essential ‎critical infrastructure, while Delaware, Kentucky, Massachusetts, New Jersey, New York, and ‎Pennsylvania have provided their own lists. Connecticut, Illinois, Indiana, Maryland, Michigan, ‎and Ohio have all incorporated the federal guidelines and provided their own lists. ‎

It is important to note further that, as of the date of this publication, the federal guidelines are in ‎no way binding on the states, and are only there to provide guidance to states and municipalities. ‎The federal government has likely issued these guidelines, rather than a sweeping national ‎standard, both out of deference to the “police powers” afforded to states under the Constitution, ‎as well as an understanding that individual states are more properly suited to assess their unique ‎needs. Nevertheless, there have been calls, including by the U.S. Chamber of Commerce, urging ‎states and municipalities to issue uniform standards based on the instituted federal guidelines. ‎

For some businesses, the determination of whether they are an essential service will be a straight-‎forward determination; for many others, it will be a matter of interpretation. Many businesses are ‎also asking then whether there is a method by which they can be precleared as an essential or ‎critical service. At this point, Massachusetts and New York have offered ‎businesses the ability to ‎request a designation or opinion, respectively, on whether they are an essential service; however, ‎these are optional and are not required of all businesses. It is unlikely that any ‎state would have ‎the capacity required to preclear all essential businesses, and therefore is an unlikely ‎measure for ‎a state to take.‎

Instead, businesses must determine—based on the guidance provided at the federal level and any ‎‎associated restrictions at the state or local level—whether they have a reasonable belief that their ‎‎business is providing an exempted service to society. ‎

For a copy of the federal memo, click here.‎

For more guidance on the federal memo and its interpretation, click here.‎

For a copy of the California order, click here.‎

For a copy of the Connecticut order, click here.‎

For a list of “essential businesses” in Connecticut, click here.‎

For a copy of the Delaware order, click here.‎

For a list of “essential businesses” in Delaware, here.‎

For a copy of the Illinois order, click here.‎

For a copy of the Indiana order, click here.‎

For a copy of the Kentucky order, click here.‎

For a copy of the Louisiana order, click here.‎

For a copy of the Massachusetts order, click here.‎

For a list of “COVID-19 Essential Services” in Massachusetts, click here.‎

For a copy of the Maryland order, click here.

For a list of “essential businesses” in Maryland, click here.‎

For a copy of the Michigan order, click here.‎

For a copy of the New Jersey order, click here.‎

For a copy of the current New York order, click here.‎

For a list of “essential businesses” in New York, click here.‎

For a copy of the Ohio order, click here.‎

For a copy of the Pennsylvania order, click here.‎

For a list of “life sustaining businesses” in Pennsylvania, click here.‎

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.