“Essential Businesses”— What If I Am Stopped?

DANA KRAVETZ
MARCH 21, 2020

In this ever-changing environment that all of us are living in, it is important to understand what we can and cannot do in the wake of the various stay-at-home orders that are issuing in an increasing number of places in an effort to slow the spread of coronavirus (COVID-19). That is especially true for companies providing “essential services” and their employers who need to leave home to go to work. For those who oversee workforces that are required to work on site—as opposed to telecommute—the following Q&A may be quite helpful.

Q. If I operate an “essential business” or am providing “essential services” in California, Illinois, New York or anywhere else that a stay-at-home order is in place, can my employees leave their homes to come to work?

A.  Yes, but you should have them work from home if and when possible.

Q. I believe my company provides “essential services” as contemplated in the stay-at-home order currently in effect where my business is situated. What can I do to protect my employees commuting to and from work from interference by law enforcement?

A. Once established that you operate an “essential business,” we can issue a letter that: (1) identifies your company by name and the business sector it falls within, (2) explains that the company qualifies as one providing an “essential service” pursuant to the relevant stay-at-home-order in force in your jurisdiction, (3) makes clear that employees of your company, specifically, and within your sector, more broadly, are permitted to leave their residences to perform “essential functions” for the necessary period of time required to complete them, and (5) directs employees to present the letter to any law enforcement personnel that may request evidence that they qualify as an “essential service” provider. Understand, this letter has no legal impact, but can be quite useful.

Q. As a reminder, what businesses and agencies offer “essential services”?

A. While the precise definition of “essential services” varies from jurisdiction to jurisdiction, the following types of businesses, professions and agencies typically qualify as providing “essential services” or performing “essential functions”:

• Hospitals, clinics, doctors, dentists, pharmacies, pharmaceutical and biotechnology companies, medical and scientific research, laboratories, health care suppliers, home health care services providers, veterinary care providers, mental health providers, physical therapists and chiropractors, cannabis dispensaries, or any related and/or ancillary health care services, manufacturers and suppliers. Health care operations do not include fitness and exercise gyms and similar facilities
• Food production companies, grocery stores, water retailers, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, warehouse stores, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh or frozen meats, fish, and poultry, any other household consumer products (such as construction supplies, cleaning and personal care products). This includes stores that sell groceries and sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences
• Take-out from restaurants, drive-thru restaurants, and delivery from restaurants
• Food cultivation, including farming, livestock, and fishing
• Banks and financial institutions
• Law enforcement and fire stations
• Courts and jails
• Garbage/sanitation
• Public transportation
• Utilities: water, power and gas
• Payroll, security, and office administration
• Public works construction, including construction of housing
• Airport operations
• Gas service stations, auto supply, auto repair, bicycle repair shops and related facilities
• Shipping and warehouses
• Hardware stores and nurseries
• Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, funeral home workers and morticians, moving services, HVAC installers, carpenters, landscapers, gardeners, property managers, private security personnel and other service providers who provide services to maintain the safety, sanitation, and essential operation to properties and other “essential activities”  
• Organizations and businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, (including gang prevention and intervention and domestic violence agencies)
• Laundromats/laundry service
• Newspapers, magazines, television, radio, podcasts and other media services
• Educational institutions, including public and private K-12 schools, colleges, and universities—but only for purposes of facilitating distance learning or performing “essential functions” provided that social distancing of six-feet per person is maintained to the greatest extent possible
• Other industries critical to the supply chain

Note that this list is not exhaustive and may or may not apply to the city or state in which you are located.

We are working diligently to keep our clients up to date on coronavirus-related developments. Nevertheless, these developments are changing daily and, in some cases even hourly, so it is important that you make sure you are dealing with the most current information. That being said, this alert is not offered, and should not be relied on, as legal advice. You should consult an attorney for guidance and counsel regarding any specific concern or situation.