By Benjamin M. Cooke, Esq.
In response to the continuing coronavirus pandemic, Ohio Governor Mike DeWine has been one of the more aggressive governors responding to the crisis. On Sunday, March 22, Governor DeWine, through Ohio Department of Health Director, Dr. Amy Acton, issued the Order that All Persons Stay at Home Unless Engaged in Essential Work or Activity (the "Order"). This Order compels some uncertainty and Ohio businesses are right to ask questions. While the public health aspect of Dr. Acton's Order is essential in combating the spread of this coronavirus, WHP wanted to provide some guidance for its clients with the following answers.
Is my business an essential business?
The threshold question is the most nuanced and some of the instructions in the Order do not seem complete. The Order permits Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations to continue to operate despite the stay at home order. Essential Businesses and Operations fall into 25 categories.
It may be hard to fit your business into one of these narrow descriptions, but the following categories are deemed Essential Businesses and Operations: grocery stores and pharmacies; food and beverage manufacturers, charitable organizations supporting the disadvantaged or needy; religious organizations, media, gas stations and businesses needed for transportation; financial institutions; hardware and supply stores; building and construction and other trades, including plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and government properties, security staff, HVAC, painting, moving and relocation services; mail, shipping, logistics, delivery and pick-up services; Educational institutions; laundry services; restaurants for consumption off-premises; supplies to work from home; transportation; home-based care and services; residential facilities and shelters; and professional services (legal, accounting, insurance and real estate services); labor unions, hotels; and funeral services.
Two somewhat catch-all categories include:
If my company supports an Essential Business, can we continue to operate?
Yes, the Order provides some clarity on this point in the catch-all section referenced above. If you support a business in the industry listed about, you may be considered an essential business too.
If my business is an Essential Business, do I need to notify the state?
No filing appears necessary under the Order. Of course, the best thing to do is to consistently communicate with employees and vendors on your business's continued operations. If your employees need to travel to your location, such as a manufacturer, you may want to provide your employees with some written notice that your business is essential and that any travel to and from your facility is in support of an Essential Business. Of course, if employees can work remotely, they should do so.
Do I need to keep my entire employee base if my company is an Essential Business?
This is an important question and you need to consider your workforce on a case-by-case basis. If you are considering layoffs, furloughs, or any work sharing program to combat the slowdown, please contact one of our attorneys for guidance.
What if my business is not an Essential Business and Operation?
If your employee base is able to work remotely, you may stay open to support those efforts whether your business is essential or not. The Order does permit companies to continue Minimum Basic Operations. Those are defined as the minimum amount of work necessary to maintain the value of the business's inventory, preserve physical plant and equipment, ensure security, process payroll and benefits, and activities that are necessary to facilitate employees' continued ability to work remotely.
Does the Order change any of the unemployment or paid sick leave terms of the Families First Coronavirus Response Act?
If your business is non-essential and is closing for now, the previous order regarding unemployment benefits for employees applies. If your business is "essential", or one of the exempt businesses that support "essential" businesses, and remains open, your employees fall under the new federal law regarding paid sick time and emergency Family Medical Leave. Articles on both the unemployment benefits and the emergency sick leave are on our website.
When does all of this take effect?
The order takes effect on Monday, March 23, 2020, at 11:59 PM.
This will continue to develop and evolve and the Order is not going to be the last word on this from the Governor or Dr. Acton. Please contact your counsel at WHP to discuss any questions or plans to respond to the Order.
This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.