Ohio’s Updated Stay-At-Home Order To Combat Pandemic Will Disrupt Businesses
The Director of the Ohio Department of Public Health issued a Stay-At-Home Order for all individuals currently living within the State of Ohio on Sunday March 22. Dr. Amy Acton’s Order goes into effect on March 23 at 11:59 p.m. and will remain in effect until 11:59 p.m. on April 6, unless rescinded or modified. This Order represents the latest of several measures enacted by the governor and the Ohio Department of Public Health in response to the COVID-19 coronavirus outbreak.
[Updated 4/2/2020: The Ohio Department of Public Health issued an Amended Stay-At-Home Order which goes into effect on April 6, 2020 at 11:59 p.m., the date the original Order was set to expire, and is in place until May 1, 2020 at 11:59 p.m., unless rescinded or modified. In addition to extending the timeline, there are a few other additions to the Amended Order noted below.]
The intent of the Order is to “ensure that the maximum number of people self-isolate in their places or residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.”
Businesses Impacted By The Order
The following businesses will be impacted by the Order.
- Non-Essential Business Operations. All businesses and operations in the State (with the exception of Essential Businesses and Operations) are required to cease all activities except for Minimum Basic Operations. The Order defines Minimum Basic Operations as those minimum necessary activities required to: (i) maintain the value of the business’s inventory, (ii) preserve the condition of the business’s physical plant and equipment, (iii) ensure security, process payroll and employee benefits, or related functions, and (iv) facilitate employees of the business being able to continue to work remotely from their residences.
- All places of public amusement, whether indoors or outdoors, shall remain closed. [Updated 4/2/2020: The Amended Order also closed public and private pools, campgrounds, recreational sports tournaments, and day camps.]
- Travel is prohibited, unless it is Essential Travel for Essential Activities and/or for Essential Businesses and Operations and Minimum Basic Operations.
[Updated 4/2/2020: The Amended Order includes additional travel restrictions related to persons entering the state with the intent to stay. Such individuals are asked to self-quarantine for 14 days. This does not apply to persons who, as a part of their normal life, live in one state and work or gain essential services in another. Further, the Amended Order states that persons who have tested positive for COVID-19, are presumptively diagnosed with COVID-19, or are exhibiting symptoms shall not enter the state, unless they are doing so under medical orders or are a permanent resident of the state.]
Note that an employee of a non-essential business may still work from home. [Updated 4/2/2020: Where the business consists of a single person, that business may remain open so long as all workplace safety standards are met.]
Businesses That May Remain Open Under The Order
The Order allows for Essential Businesses and Operations to remain open and staffed by their employees. Along with the categories listed below, the term Essential Businesses and Operations also includes, Healthcare and Public Health Operations, Human Services Operations, Essential Governmental Functions, and Essential Infrastructure. The list below provides a brief summary of each category. If you believe you may fall under one of these exemptions, please contact your Fisher Phillips attorney directly.
- CISA List – On March 19, 2020, the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA), issued a memorandum identifying essential business and critical infrastructure. Ohio’s Order specifically includes all workers identified in that Memorandum.
- Stores that sell groceries and medicine. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, that sell non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations. [Updated 4/2/2020: The Amended Order requires stores to determine and enforce the maximum capacity of persons permitted in any store such that all persons in a store at any one time may safely and comfortably maintain a six-foot distance. The Amended Order did not set a specific number. Once that number is determined by the store, each store must prominently display the maximum capacity number at every entrance. Each store shall ensure that baskets, shopping carts and the like are properly cleaned. If a line is present inside or outside the store, a six-foot distance shall be maintained between individuals not residing in the same household.]
- Food, beverage, and licensed marijuana production and agriculture. This includes food and beverage manufacturing, production and processing, cultivation, including farming, livestock, fishing, baking and other production of agriculture; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; business that provide shelter, food, and other necessaires for life for animals.
- Organizations that provide charitable and social services. This includes businesses and religious secular organizations, including foodbanks, when providing services for the economically disadvantaged or others that need assistance as a result of this emergency, and people with disabilities.
- Religious entities. Religious facilities, entities and groups and religious gatherings, including weddings and funerals. [Updated 4/2/2020: Wedding receptions are subject to the 10-person limitation as noted in Section 3 of the Amended Order.]
- Newspapers, television, radio, and other media services.
- First amendment-protected speech.
- Gas stations and businesses needed for transportation. Gas stations and auto supply, auto-repair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities.
- Financial and insurance institutions. Bank, currency exchanges, consumer lenders, including related entities listed in the Order.
- Hardware and supply stores. Hardware stores and businesses that sell electrical, plumbing, and heating materials.
- Critical trades. Building and Construction Tradesman and Tradeswomen, including related trades listed in the Order.
- Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other business provided shipping and delivery services and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods, vehicles or services to end users or through commercial channels.
- Educational institutions. Including public and private pre-K-12 schools, colleges and universities, for purposes of facilitating distance learning, performing critical research, or performing essential functions, provided that they comply with social distancing to the greatest extent possible. This Order is consistent with and does not amend or supersede the governor’s prior order related to the closure of schools.
- Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers.
- Restaurants for consumption off-premises. Restaurants can continue to prepare and serve food but only for off-premises consumption. Schools and other entities that typically provide food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis. This Order is consistent with and does not amend or supersede the governor’s prior order related to the closure of restaurants.
- Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home.
- Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with support or materials necessary to operate.
- Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, marinas, docks, boat storage, and other private, public, and commercial transportation and logistics necessary for Essential Activities and other purposes authorized by the Order.
- Home-based care and services. Home based care and other in-home services including meal delivery.
- Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, pets, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness.
- Professional services. Legal services, accounting services, insurance services, real estate services (including appraisal and title services).
- Manufacture, distribution and supply chain for critical products and industries. Manufacturing companies, distributors, and supply chain companies producing and supplying essential products for industries. Specific industries are listed in the Order and the Order specifically includes products used by Essential Businesses and Operations.
- Critical labor union functions. Labor Union essential activities. Specific examples are provided in the Order and include providing services in Essential Businesses and Operations.
- Hotels and motels. To the extent used for lodging and delivery or carry-out food services.
- Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related services.
For businesses that remain open, whether as Essential Businesses and Operations or to engage in Minimum Basic Operations, the Order requires them to implement appropriate social distancing policies to ensure the safety of their employees and customers. Therefore, those businesses must take proactive measures to comply with social distancing, where possible, including: (a) designating six-foot distances; (b) making hand sanitizer and sanitizing products available for customers and employees; (c) implementing separate hours for vulnerable populations; and (d) posting online whether a facility is open and how to best reach the facility and continue services by phone or remotely.
Policies Businesses Must Implement If They Remain Open
While non-essential business must close with the exception Minimum Business Operations, those that remain open in accordance with the Order must to take the following actions:
- Allow as many employees as possible to work from home by implementing appropriate policies.
- Actively encouraging sick employees to stay home until they are symptom free and at least seven days have passed since symptoms first began. This Order includes specific guidance related to a fever and when the fever subsides. Do not require a healthcare provider’s note to validate illness or return to work.
- Ensure that sick leave policies are up to date, flexible and non-punitive to allow sick employees to stay home to care for themselves, children or other family members. Consider encouraging employees to do a self-assessment each day to check to see if they have any COVID-19 symptoms.
- Separate employees who appear to have an acute respiratory illness and send them home immediately.
- Communicate with employees and reinforce the need for them to stay home when sick and to practice good hygiene. Provide protection supplies to employees.
- Frequently perform enhanced environmental cleaning of common areas. Provide disposal wipes so that commonly used surfaces can be wiped down by employees before use.
- Be prepared to change business practices if needed and to maintain critical operations.
Additional Considerations For Employers
This Order is mandatory and thus businesses must comply. In addition to the information provided by the Order, businesses should take the following into consideration:
- Get a “to go bag” together for your employees. Make sure your employees have what they need to work from home. From basic office supplies to laptops and thumb drives as needed.
- Consider implementing a reimbursement policy for expenses. Employees may need to purchase supplies to work from home, especially if they have not been able to gather a “to go bag.”
- Ensure your telework policy is up to date. If you do not have a telework policy, you should implement one and have employees sign and acknowledge the same.
- If you are engaged in any Essential Businesses and Operation or Minimum Basic Operations, take employee temperature before they begin work.
- Make sure employees are accurately reporting their time so they can be paid in accordance with state and federal laws.
- In addition to this Order, to help employees and employers through this crisis, the Ohio Department of Insurance has allowed employers to delay premium payments for 60 days and has waived the “actively at work” requirement.
[Updated 4/2/2020: The Amended Order contains enforcement and penalty provisions. A violation of R.C. 3701.252, relating to the violation of any rule issued by the Director o Department of Health, is guilty of a misdemeanor of the second degree, which can include a fine of not more than $750 or not more than 90 days in jail, or both. Further, the Amended Order provides a dispute resolution process whereby a commission, appointed by the Director of Health, will review and make final determinations regarding any conflicts that arise under the Amended Order.]
For now, we will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our Cleveland or Columbus offices, or any member of our COVID-19 Taskforce. You can also review our nationwide Comprehensive and Updated FAQs for Employers on the COVID-19 Coronavirus and our FP Resource Center For Employers, maintained by our Taskforce.
This Legal Alert provides an overview of a specific state law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.