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How may ‘non-essential’ Md. businesses operate?

white-lindsey-a-col-sigBeginning on March 12, 2020, when Gov. Larry Hogan ordered that public schools close and the term social distancing gained widespread popularity due to the novel coronavirus, COVID-19, employers have found themselves navigating a new world that is changing by the hour.

Employers are trying run their businesses and keep their employees earning income while taking appropriate precautions to prevent exposure and transmission of COVID-19. (All COVID-19 related executive orders and interpretive guidance are available here.

On March 23, Hogan issued Executive Order 20-03-23-01, which ordered that non-essential businesses close “to the general public” by 5 p.m. that day. The Governor’s Office of Legal Counsel subsequently issued Interpretive Guidance COVID19-04, enumerating several essential businesses that may remain open.

This list states that the list of essential businesses is “non-exhaustive.” In addition, the interpretive guidance expressly refers to the federal critical infrastructure sector list for additional guidance, which the Department of Homeland Security published last week, and is available here.

Later on March 23, the Office of Legal Counsel issued Interpretive Guidance, COVID19-05, listing additional essential businesses that may remain open, which was then supplemented by more essential businesses listed in the March 24 Interpretive Guidance, COVID 19-06.

All of this guidance is extremely helpful for those businesses deemed essential, but what about non-essential businesses that would like to continue operations to the extent it is safe to do so? Hogan’s March 30 “stay-at-home” order and subsequent guidance (COVID19-07 and 08) dramatically changed the landscape for non-essential businesses.

As companies struggle to determine if and how they may operate, the information below is helpful:

Non-essential businesses may continue to operate remotely:  Even non-essential businesses may continue operations remotely. There is no concern about the spread of COVID-19 when employees are at home.

Non-essential businesses may continue to make home deliveries: Making deliveries is consistent with being “closed to the general public.” Non-essential business may no longer permit curbside pickup (restaurants and bars are deemed essential, so they may continue with curbside pickup).

Deliveries must be made “in a manner consistent with all applicable guidance from the Centers for Disease Control, Occupational Safety & Health Administration, and Maryland Department of Health with respect to cleaning and social distancing protocols.

Non-essential businesses may only have employees on-site for “critical operations”: Pursuant to the governor’s stay-at-home order, employees of non-essential businesses may only be on-site for the following reasons:

  • to facilitate telework;
  • maintain essential property;
  • prevent loss of or damage to property, including perishable inventory;
  • performing essential administrative, such as retrieving mail and processing payroll;
  • caring for live animals.

In addition, non-essential retail businesses may continue to sell retail products on a delivery basis.

Business owners who remain unclear as to whether their business is “essential” should carefully review all interpretive guidance and make a “good faith determination” regarding the appropriate designation based on how the guidance treats other similar businesses.

Business owners may reach out to Maryland’s Department of Commerce at psector@maryland.gov for specific guidance. Businesses should provide a short, concise summary on why they should receive an essential service designation.

Businesses that are permitted to remain open (to any degree) should strongly consider providing their workers who travel with letters to present to the authorities in the event they are stopped. My firm has had several clients report receiving visits from the police or the police stopping their employees as they travel to or from work.

These letters should contain: the name and address of the employer; the name and address of the employee; the nature of the employer’s work; a brief statement regarding why the employer is essential; and a signature and contact information for the employer.

Lindsey A. White is a partner at Shawe Rosenthal, LLP, a management-side labor and employment firm in Baltimore.

 

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