Enforcement of Business Closure Orders During the Coronavirus Outbreak

Should you stay or should you go? Understand whether your business can legally stay open during the COVID-19 outbreak, and what will happen if you're wrong.

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.

Government Orders and Restrictions on Businesses

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:

  • all businesses except essential businesses are required to cease all activities at facilities, but employees are allowed to work from home to the extent possible
  • restaurants and other food service establishments are prohibited from serving food for consumption on the premises, but may serve food for takeout, delivery, or drive-through service
  • gyms, salons, spas, theaters, malls, arcades, and other similar recreational facilities must close
  • group religious services may only be provided by video and teleconference, and
  • essential businesses must comply with social distancing guidelines for both employees and the general public.

What is an "Essential" Business?

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:

  • critical infrastructure sectors defined by the Department of Homeland Security
  • businesses providing essential government functions, such as law enforcement and first responders
  • essential healthcare operations, including hospitals, clinics, dentists, pharmacies, and others
  • essential retail, primarily including companies providing groceries, food, home goods, and supplies necessary to work from home
  • businesses providing essential household services like cleaning, maintenance, and security, and
  • professional services, such as legal or accounting services, that are necessary to ongoing essential business concerns.

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.

Consequences of Keeping a Non-Essential Business Open

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:

  • why you believe your specific business activity is essential under the circumstances, and
  • how your business is implementing the social distancing practices outlined in the COVID-19 Orders for essential businesses.

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.

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