Guidance for Determining Whether Your Business Is “Essential” or “Critical” Under Executive Orders Related to Coronavirus and Relevant Employment Law Considerations

March 23, 2020
March 25, 2020 Update.  New York issued additional guidance, in the form of frequently asked questions, regarding both “essential” and “non-essential” businesses.  The guidance clarifies that essential businesses are required to “utilize telecommuting or work from home procedures to the maximum extent possible” even for essential products and services and roles that support essential products or services (e.g., human resources, accounting, legal).  The guidance also clarifies that non-essential businesses may have “[a] single person attending a non-essential closed business temporarily to perform a specific task,” such as collecting the mail, as long as they will not be in contact with other people.  The New York State Department of Labor also posted a webpage with links for employees to submit complaints related to COVID-19 regulations, such as being directed to work at a non-essential business or an employer’s failure to pay required sick leave.  These new developments are incorporated within the below post.

March 24, 2020 Update.  Today, two additional pieces of guidance were issued concerning the determination of whether businesses are “essential.”  First, U.S. Treasury Secretary Steven Mnuchin issued a statement endorsing and elaborating on the federal guidance issued by the Department of Homeland Security that identified financial services sector workers as “essential critical infrastructure workers.”  Second, California issued additional guidance in the form of frequently asked questions relating to its statewide “stay-at-home” order that addresses the essential business determination.  These new developments are incorporated within the below post.

The Coronavirus pandemic continues to spread rapidly and at least a dozen states (with more likely to follow suit) have issued orders instructing residents to stay at home and prohibiting “non-essential” or “non-critical” businesses from having employees report to the workplace in-person.  Although these orders often provide some guidance regarding whether a business should be considered “essential” or “critical,” the burden generally is on the businesses to determine whether they qualify as “essential” or “critical.”  Because the specifics of each business and its employees are different, businesses may want to obtain legal advice regarding this determination.  Additionally, even if a business correctly determines it does meet the threshold for designation as “essential” or “critical,” the business then needs to determine which of its employees should report to the workplace and how to assist with their safe passage to the workplace.  
 
Because there are various state and local orders currently in place, which are being modified in response to ongoing developments, and additional orders being issued daily, businesses should be sure to regularly review the guidance for updates and changes. 
 
Federal CISA Guidance Relied on by Certain States
The Cybersecurity and Infrastructure Security Agency (“CISA”) is a federal agency overseen by the Department of Homeland Security.  CISA has issued general guidance designating 16 critical infrastructure sectors:  chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government facilities; healthcare and public health; information technology; nuclear reactors, materials and waste; transportation systems; and water and wastewater systems.  In addition to its general guidance, CISA issued Coronavirus-specific guidance on March 19, 2020.  While state and local governments are “ultimately in charge of implementing and executing response activities,” CISA’s guidance is informative, and some states reference CISA’s guidance in their mandates. 
 
CISA’s Coronavirus-specific guidance states, among other things, that:
  • “Workers should be encouraged to work remotely when possible and focus on core business activities.  In-person, non-mandatory activities should be delayed until the resumption of normal operations.”;
  • “When continuous remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease.”;
  • “Everyone should follow guidance from the CDC, as well as state and local government officials, regarding strategies to limit disease spread.”; and
  • “All organizations should implement their business continuity and pandemic plans, or put plans in place if they do not exist.Delaying implementation is not advised and puts at risk the viability of the business and the health and safety of the employees.”
CISA’s March 19 guidance also provides examples of essential workers in the following sectors: healthcare / public health; law enforcement, public safety, first responders; food and agriculture; energy; water and wastewater; transportation and logistics; public works; communications and information technology; other community-based government operations and essential functions; critical manufacturing; hazardous materials; financial services; chemical; and defense industrial base. Again, while CISA’s guidance is advisory in nature, it may be a helpful starting point for employers.

On March 24, U.S Treasury Secretary Steven Mnuchin issued a statement supporting the federal guidance issued by the Department of Homeland Security that identifies financial services sector workers as “essential critical infrastructure workers.”  Secretary Mnuchin stated that “[t]he Essential Critical Infrastructure Workforce for the financial services sector includes workers who are needed to process (and maintain systems for processing) financial transactions and services, such as payment, clearing, and settlement services, wholesale funding, insurance services, and capital markets activities.  Essential financial services workers provide consumer access to banking and lending services, including ATMs and the movement of currency (e.g., armored cash carriers).  They support financial operations, including data and security operations centers.  Essential workers also include key third-party providers who deliver core services.”

California
On March 19, 2020, California Governor Gavin Newsom issued an Executive Order mandating that all California residents “stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors” as outlined by CISA.  A brief overview of the California Executive Order follows; employers should bear in mind that certain counties, such as Los Angeles, Sacramento and San Francisco, have issued their own stay-at-home orders, which are stricter than the statewide order. 
  • Non-Critical Businesses. Businesses that are not part of the critical infrastructure sectors (as set forth in CISA’s guidance referred to above and California’s guidance referred to below) may not require or request that their employees report to the workplace in violation of the Executive Order.
  • “Critical Infrastructure Sectors” Exemption. Businesses or entities that must continue to operate in order to “maintain continuity of operations of the federal critical infrastructure sectors” as outlined by CISA are exempt from this Order.  In addition to the CISA guidance, California’s State Public Health Officer has provided guidance as well as a list of “Essential Critical Infrastructure Workers.” California also issued guidance in the form of frequently asked questions.  California’s guidance also links to CISA’s March 19 guidance referred to above.
  • Non-compliance. The current penalties for non-compliance in California are fines of up to $1,000 or six-months’ imprisonment. 
Connecticut
On March 20, 2020, Connecticut Governor Ned Lamont signed an Executive Order as part of his “Stay Safe, Stay Home” initiative. Connecticut’s Executive Order also prohibits municipalities from issuing any order that conflicts with the statewide Executive Order, including any shelter-in-place order or order prohibiting travel, without written permission from Connecticut’s Department of Emergency Services and Public Protection. 
  • Non-Essential Businesses – No Employees Can Report In Person. Non-essential businesses and non-for-profit-entities must not have their employees report in person to the workplace beginning March 23 at 8 pm through April 22 (though this may be extended).  Non-essential businesses and not-for-profit entities “shall employ, to the maximum extent possible, any telecommuting or work from home procedures that they can safely employ.”
  • “Essential” Businesses Exemption.  “Essential” businesses are exempt from this restriction.  “Essential” businesses include, but are not limited to, the 16 critical infrastructure sectors defined by CISA (and referred to above). The Connecticut Department of Economic and Community Development (“DECD”) issued further guidance regarding the designation of “essential” businesses. The DECD’s guidance also states “[t]o the extent possible, employees of Essential Businesses whose duties are not critical to an Essential Business function . . . should telecommute or utilize any work from home procedures available to them.” 
  • Non-compliance. The current penalties for non-compliance within Connecticut are civil fines.  
New Jersey
On March 21, 2020, New Jersey Governor Phil Murphy issued an Executive Order mandating that all New Jersey residents remain home or at their place of residence with limited exceptions, including reporting to or performing their job.  Governor Murphy issued another Executive Order invalidating any orders from municipalities that conflict with or interfere with the statewide Executive Order, with the exception of those relating to online marketplaces for arranging or offering lodging and municipal or county parks.
  • Telework “Wherever Practicable.”All businesses or non-profits in New Jersey “must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” 
  • Minimal Number of Employees On-site.“To the extent a business or non-profit has employees that cannot perform their functions via telework or work-from-home arrangements, the business or non-profit should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.”
    • Restaurants & Bars.  “All restaurants, cafeterias, dining establishments, and food courts, with or without liquor licenses, all bars and all other holders of liquor licenses with retail consumption privileges” are permitted to operate for delivery and/or take-out.
    • Retail Stores.  With certain exceptions for “essential” retailers, “[t]he brick-and-mortar premises of all non-essential retail businesses must close to the public.” 
  • “Essential” Retailers Exemption. Essential retail businesses may remain open during their normal business hours and must, wherever practicable, provide pickup services outside or adjacent to their stores for goods ordered in advance. “Essential” retailers include, among others:  grocery stores, pharmacies, medical supply stores, gas stations and their retail stores, convenience stores, retail functions of banks and other financial institutions, and retail functions of mail and delivery stores.
  • Non-compliance. The current penalties for non-compliance include a fine of up $1,000, up to six-months’ imprisonment and a conviction of a disorderly persons offense. 
New York
On March 20, 2020, New York Governor Andrew Cuomo signed an Executive Order entitled New York State on Pause (Policies that Assure Uniform Safety for Everyone) (“PAUSE”).  A brief summary of PAUSE follows; for more information on PAUSE, please see our March 20, 2020 blog post
  • Non-Essential Businesses – No Employees Can Report in Person. Under PAUSE, non-essential businesses must not have their employees report in person to the workplace beginning March 22 at 8 pm through April 19 (though this may be extended). 
    • Non-essential businesses may have “[a] single person attending a non-essential closed business temporarily to perform a specific task,” such as collecting the mail, as long as they will not be in contact with other people.
  • “Essential Services or Functions” Exemption.Businesses or entities providing “essential services or functions” are exempt from PAUSE.  Governor Cuomo’s previous Executive Orders provided a list of “essential” businesses and functions, and the New York State Department of Economic Development (d/b/a Empire State Development Corporation (“ESDC”)) issued further guidance on each of the categories listed in the Executive Order as “essential.”  New York issued additional guidance, in the form of frequently asked questions, clarifying that essential businesses are required to “utilize telecommuting or work from home procedures to the maximum extent possible” even for essential products and services and roles that support essential products or services (e.g., human resources, accounting, legal).
  • Non-compliance. The current penalties for non-compliance with PAUSE include mandatory business closure and civil fines for businesses.  Governor Cuomo stated that, at this time, he did not intend to issue fines to individuals for violations of PAUSE. The New York Attorney General has asked employees to report their employers if they believe their employers are violating PAUSE. The New York State Department of Labor also posted a webpage with links for employees to submit complaints related to COVID-19 regulations, such as being directed to work at a non-essential business or an employer’s failure to pay required sick leave.  
Safe Passage Letters
Businesses that determine they are “essential” or “critical” and are therefore permitted to continue operating may want to provide “safe passage” letters to their employees who will continue to report to the office.  Employees should be instructed to carry a hard copy of the letter as well as a pdf or email copy of the letter on their phone to show to authorities in the event that they are stopped en route to or from the office.  Because of the rapid pace of these developments, employers may find it more feasible to issue immediately the same, general letter to those employees who will continue to report to the office.  Employers could then draft more specific letters for certain critical personnel. 
 
Comfort Letters
In addition to “safe passage” letters for their employees, businesses may also want to draft comfort letters to the suppliers or vendors that they rely on for essential needs.  While not all of the state and local guidance expressly exempts entities that provide necessary supplies or services to “essential” or “critical” services, it follows that these entities will need to continue to operate, at least in part, in order to support the “essential” or “critical” businesses.  To assist suppliers or vendors, “essential” businesses may want to provide a “comfort letter” to them that lays out the legal basis for their continued operation, explaining that specific supplies or services are necessary to the continued operation of the “essential” or “critical” business.
 
Legal & Other Consequences
In addition to the various legal penalties for non-compliance, employers may want to consider other potential consequences of non-compliance with stay-at-home orders.  For example, employees who believe their employers are misinterpreting the stay-at-home order and requiring employees to report in person to the workplace may report the employer to the authorities and/or the media.  Similarly, competitors who have determined that they are non-essential may report businesses that remain open to the authorities or media. 
 
The Coronavirus situation is fluid, and laws are changing rapidly.  Our recent memorandums and other information discussing various aspects of Coronavirus can be found here.

Executive Order/EO