‘Essential’ businesses can vary by state
List of stay-at-home orders keeps growing
With California, New York, New Jersey, Illinois, Ohio, Indiana, Massachusetts, Michigan, Louisiana and West Virginia ordering the closure of non-essential businesses and all non-essential workers to stay home – in an attempt to prevent the spread of the coronavirus – you might be asking yourself, “What is essential?”
Federal guidelines give state and local authorities leeway in what they consider essential businesses during an emergency. But in general, those industries identified as essential include grocery stores and food production, pharmacies, health care, utilities, shipping, banking other governmental services, law enforcement and emergency personnel.
“The broad view is health care, obviously that is essential, sanitation (and) food is essential, and military is essential,” said Jerry Hathaway, a New York City attorney with Faegre Drinker Biddle & Reath.
Since each state can designate what classifies as essential, employers must be careful to follow regulations. Civil penalties could result from not following such executive orders.
“I don’t think a typical employer had in the playbook a pandemic on the scale of this,” said Hathaway, who has practiced labor law for more than 40 years. “Everybody is in a state of shock, flux and they are dealing with it as best they can. And they are looking for guidance because we have a lot of laws about notices before you close and all of that. People are trying to do the right thing while being compliant with all our labor laws. It’s a challenge for all employers.”
State governors take the lead
A growing number of states have told residents to stay at home and work from home, unless their jobs are considered essential. And more could call for all non-essential businesses to close.
New York Gov. Andrew Cuomo on
Friday mandated everyone not critical to their workplace to stay at home and all non-essential businesses to close by Sunday. Essential businesses include pharmacies and grocery stores. Also considered essential, according to the New York executive order: telecommunication, airports and transportation infrastructure; services including trash collection, mail and shipping services; and news media.
“Grocery stores need food. Pharmacies need drugs. Your internet needs to continue to work. Water has to turn on when you turn the faucet,” Cuomo said.
Also on Friday, Illinois Gov. J.B. Pritzker issued an executive order calling for the cease of non-essential business operations and residents to stay at home. Essential businesses and operations include charities, hardware and supply stores, cannabis production and restaurants preparing food.
“I fully recognize that in some cases I am choosing between saving people’s lives and saving their livelihoods,” Pritzker said. “But ultimately, you can’t have a livelihood without a life. This will not last forever, but it’s what we must do to support the people on the front lines of this fight, and the people most vulnerable to its consequences.”
In California, Gov. Gavin Newsom on Thursday ordered residents to stay at home except businesses and workers needed to maintain critical operations such as emergency, food, defense and utilities. Newsom noted federal recommendations from the Department of Homeland Security and its Cybersecurity & Infrastructure Security Agency’s guidelines in California’s executive order.
Those recommendations say that “different jurisdictions may come to different conclusions as to where essential worker accommodation is warranted based on the prevalence and density of certain infrastructure activity and assets in that area.”
“Regulators are clearly trying to leave as little to chance as possible,” said attorney David Coale of Lynn Pinker Cox & Hurst of Dallas.
Other industries considered essential, at the federal level, include health care, mail and shipping businesses, hardware stores and gas stations.
And while they are very detailed, he said, the guidelines “are difficult to enforce without mobilizing a massive lawenforcement effort.”
How should workers handle this?
Workers should contact their employer if they haven’t been given direction, says Charles Jellinek, an employment law specialist at Bryan Cave Leighton Paisner in St. Louis.
Employers should “certainly be scrutinizing the executive orders,” Jellinek said. Employers in New York can also reference the Empire State Development corporation’s additional guidance on essential industries in Cuomo’s order.
“There’s certainly some businesses in retail that can continue on, the obvious ones (are) grocery stores, pharmacies, convenience stores, gas stations, farmers’ markets,” Jellinek said. “But electronic goods, entertainment goods, luxury goods, clothing stores, I would be surprised if they were taking the position they should be open. Right now it’s just going to be what do people need for everyday living.”
Video game retailer GameStop, which had been criticized for staying open when most other non-essential retail stores had closed, said Sunday that it would shift to online sales and curbside pick-up orders only and close its U.S. retail operations temporarily.
GameStop CEO George Sherman said the firm had been following the Centers for Disease Control and Prevention guidelines and had looked to serve its customers at a time when so many have been forced to remain at home.
“We are complying with all state, county, city and local ordinances, and we will continue to adjust to any future developments,” GameStop had said in a statement to USA TODAY.
Employees cannot be fired for refusing to perform what is essentially an illegal act, Coale says. “These orders give employees leverage by saying they can sue and get punitive damages if they are terminated,” he said.
“I fully recognize that in some cases I am choosing between saving people’s lives and saving their livelihoods. But ultimately, you can’t have a livelihood without a life.” Illinois Gov. Jay Pritzker