We are all in this historic COVID-19 outbreak together, and we all have different contributions to make for the cause. While for most, the call of the day is to stay home and "flatten the curve," our communities can't afford for everyone to shut their doors and binge Netflix until summer. We need businesses to supply our households, and they need us to buy their products. This conundrum raises many questions regarding who should shut down business operations and who should shift to the next level of churning out their products and services.
State and local governments have issued various executive orders (COVID-19 Orders) attempting to curb the spread of the COVID-19 virus, from states of emergency, to shelter-in-place, to stay-at-home orders. While they differ somewhat from jurisdiction to jurisdiction, most COVID-19 Orders contain the following restrictions related to business closures:
So far, state and local governments have taken a broad approach to what types of businesses are essential to our daily lives. For the most part, essential businesses include:
The COVID-19 Orders are written broadly, as what constitutes an essential business is open to debate. For example, a company supplying the products necessary to pack grocery items could be deemed essential to the grocery suppliers’ delivery of services. The ambiguous wording of the orders affecting particular businesses might leave some owners in the lurch, not knowing whether they’re essential under the order, and what will happen if law enforcement decides they are not.
While a robust civic response to this deadly pandemic is reassuring for most, it can also leave those questioning whether their business is “essential” wondering how far the government can legally go to enforce the COVID-19 Orders. In most jurisdictions, violations of the stay-at-home orders are misdemeanors. The orders include their own enforcement mechanisms that authorize law enforcement to issue fines or to arrest non-compliant business owners. These punishments are relatively minor, with fines up to about $1,000 and jail terms around 180 days. And many authorized punishments are much lower, at $10 to 50 fines and 30 days’ jail time. Should a given situation escalate, other enforcement mechanisms could entail disorderly conduct or obstruction of governmental function citations.
But although the COVID-19 Orders typically include enforcement authorizations, the general attitude toward non-compliance seems to be that law enforcement would prefer to use persuasion over force, giving business owners a reasonable opportunity to comply. And most law enforcement agencies have expressed the intent to encourage compliance with the COVID-19 Orders with an education-first approach to coax business owners into voluntary compliance.
Given the growing scarcity of supplies, government officials are likely to err on the side of caution in forcing business closures where an argument could be made that the goods or services provided by a business are indeed essential. But it’s important to remember that the sheriff’s or police department’s mandate is above all to protect public safety and, under the current circumstances, to curb the spread of contagious disease.
If your company is still in operation, a recommended practice is to draft an explanation for:
That way, if the health department or sheriff come knocking, you will at least be prepared to answer their questions regarding why your storefront is still in operation.