On March 22, 2020, Dr. Amy Acton, health director for the Ohio Department of Health, signed the “Director’s Stay at Home Order,” calling on all Ohioans to stay at home or at their place of residence unless conducting or participating in essential activities, essential governmental functions, or essential businesses and operations.
The Director’s Order, which will be enforced by local departments of health and local law enforcement, goes into effect at 11:59 p.m. on March 23, 2020 and remains in effect until 11:59 on April 6, 2020. The Order has a number of key directives for businesses operating in Ohio.
Essential businesses and operations
All businesses and operations in the state except “essential businesses and operations” are required to cease all activities within the state except “minimum basic operations.” Minimum basic operations means:
- the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the physical space and equipment, ensure security, process payroll and employee benefits, or for related functions; and
- the minimum necessary activities to facilitate employees of the business being able to continue to work remotely.
Essential businesses and operations are encouraged to stay open, provided the business complies with certain social distancing requirements outlined in the order. The order’s definition of “essential business and operations” incorporates the list of essential businesses and operations identified in the U.S. Department of Homeland Security’s, Cybersecurity & Infrastructure Security Agency (CISA) “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.” The Order expands upon the CISA guidelines by also designating the following industries as essential business and operations:
- Healthcare and public health operations (including, but not limited to, manufacturers and warehouse operators for healthcare related products);
- Human service operations (including, but not limited to, long-term care facilities and group day care homes);
- Essential infrastructure (including, but not limited to, construction, and operation of utilities);
- Stores that sell groceries and medicine;
- Food, beverage and licensed marijuana production and agriculture;
- Organizations that provide charitable and social services;
- Religious entities;
- First Amendment protected speech;
- Gas stations and businesses needed for transportation;
- Financial and insurance institutions;
- Hardware and supply stores;
- Critical trades;
- Mail, post, shipping, logistics, delivery and pick up;
- Educational institutions facilitating distance learning;
- Laundry services;
- Restaurants for consumption off-premises;
- Suppliers of work from home materials;
- Suppliers for essential and businesses and operations;
- Home-based care and services;
- Residential facilities and shelters;
- Professional services (legal services, accounting services, insurance services, and real estate services);
- Manufacture, distribution and supply chain for critical products and industries (including, but not limited to, waste pickup and disposal, chemicals and sanitization, and biotech);
- Critical labor union functions;
- Hotels and motels; and
- Funeral businesses
The order defines most of the above in greater detail. You are encouraged to review the entire order and to get legal advice if you feel there is any ambiguity about how the Order applies to your business.
Social distancing requirements
Essential businesses and operations and non-essential businesses engaged in minimum basic operations must take certain proactive measures to protect their employees and customers including:
- Designating six-foot distances with signage, tape or by other means to encourage proper spacing of employees and customers;
- Providing hand sanitizer and sanitizing products for employees and customers;
- Offering separate hours for vulnerable populations, including the elderly and immunocompromised; and
- Posting online whether a facility is open and how best to reach the facility to continue services by phone or remotely
Businesses and employers must take several specific, additional steps to protect their employees including:
- Allowing as many employees as possible to work from home;
- Actively encouraging sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began;
- Ensuring that sick leave policies are flexible and non-punitive to allow sick employees to stay home to care for themselves, children, or family members;
- Separating employees who appear to have acute respiratory illness symptoms from other employees and sending them home immediately while restricting access to the business until they are recovered, and notably, the Order says that employers are not to require a health care provider’s note to validate the illness or return to work of employees with “acute respiratory illnesses”;
- Reinforcing key messages such as staying at home when sick, using cough and sneeze etiquette, and practicing hand hygiene;
- Performing enhanced cleaning of commonly touched surfaces like workstations, rails, door handles, and doorknobs; and
- Preparing to change business practices if needed to maintain critical operations (e.g. identify alternative suppliers, prioritize customers, or temporarily suspend some operations).
The Families First Coronavirus Response Act and the Director’s Order
The Federal Families First Coronavirus Response Act (FFCRA), which takes effect on April 2, 2020 and on which we previously reported, provides up to two weeks (80 hours) of unpaid leave to employees of private employers with fewer than 500 employees and all public employees. This paid sick leave may be used when, among other things, an employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
This likely means that a Stay at Home Order such as the order issued on March 22, 2020 by Dr. Acton would qualify as a local quarantine or isolation order entitling an employee to paid sick leave after the FFCRA’s April 2, 2020 effective date, if the employee cannot report to work because of the Order. We await the Department of Labor’s final regulations interpreting this and other issues, and will provide further update once the final regulations become available.