At rapid fire pace, governors are issuing orders that could require the closure of businesses that are not life-sustaining businesses. Pennsylvania was among the very first to do so on March 19, 2020. Generally speaking, life-sustaining businesses may remain open but must follow, at a minimum, social distancing practices and other mitigation measures defined by the CDC.
If your business operates in a state or municipality where such an order has been issued, you must first determine whether your municipality or state has issued guidance regarding businesses that it deems to be essential or non-essential. You can find a list of certain state-wide orders here, which we will update from time to time as new orders are issued.
At this time, there is no federal order on this subject or consistent definitions of “essential” or “life-sustaining.” However, there is federal guidance that many states (but not all) appear to be following in the development of these definitions.
Some states (e.g., California, Illinois) are referencing the U.S. Department of Homeland Security Guidance, issued by DHS’ Cybersecurity and Infrastructure Security Agency (CISA) on March 19, 2020, to make sure that vital industries remain open.
For defense contractors or contractors doing business in support of National preparedness and readiness, the Pentagon has issued a memo advising that they are expected to maintain their normal work schedules, but deferring to the DHS’ guidance. Many defense contractors are relying on this Pentagon memo, or other similar memos being issued by other military branches, as well as DHS’ guidance, to substantiate their requests or decisions to remain open.
So far, the states do not appear to require essential or life-sustaining businesses to take any action to remain open; the onus is on the non-life sustaining businesses to cease operations (subject to the applicable order) rather than on life-sustaining businesses to obtain some sort of waiver or exemption in order to continue operations. This may change as the situation evolves and you should carefully consult the applicable order to see if such a process exists. Non-essential businesses staying open may be subject to fines and criminal penalties.
Given the high cost, if you believe that you are a part of a vital or critical industry but are not sure if your business is essential or life-sustaining, review the applicable order carefully and prepare your defense. It remains likely that there will not be enough time or available resources to have a governmental authority certify that your business may remain open. If a business wants more certainty beyond “self-certification,” it may submit a “stay-open” communication to its local governmental authority. Such communication should describe in detail why your business is life-sustaining and should include, among other things, the specific steps that you have taken to create a safe working environment while remaining open. It may also be helpful to include pictures (e.g., spaced-out employees, signage posted) in any such communication.
Finally, you may also want to consider sending a communication to your suppliers stating that you deem your operations to be essential and that you expect that your suppliers will meet their contractual obligations. Taft attorneys are available to quickly assist you in reviewing applicable orders and in preparing and reviewing any such stay-open or supplier communication.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.