In response to the COVID-19 outbreak, many states and cities have issued stay-at-home orders, requiring individuals to shelter in place and non-essential businesses to temporarily close. Workers and businesses offering “essential” or “critical” services are typically exempt from these orders. However, federal and state legislators have not agreed on a single definition of the term “essential.” As a result, similar businesses in different cities might face inconsistent regulations. And, just to make matters more complicated, in some cases you may operate a non-essential business if you do so in the right way (see below).
Generally speaking, an essential service is one that is necessary for public health and safety. If the government deems the business essential, it may continue to operate while shelter-in-place orders are active. In most areas, the government will not require an essential business to obtain a certificate or verification; the business can simply continue to operate.
However, even essential businesses should implement policies that will protect the health and safety of the community. This might include reducing hours, encouraging social distancing with staff and customers, adopting hygiene and sanitation policies, and allowing employees to work from home when possible. Be sure your sick and family leave policies are in compliance with the law, and that ill employees are encouraged to stay home to self-isolate.
While federal, state, and local governments differ as to the definition of “essential,” a number of businesses are typically included on everyone’s list. Essential services generally fall into one of the following categories:
If the government does not list a type of business as essential and the business does not provide goods or services to an essential company, it is non-essential (though it might still be allowed to operate; see the section below). Government resources might list particular businesses that are non-essential. These typically include:
One locality may deem a type of business essential, while a different locality might consider the same service non-essential. If you operate any of these businesses, be sure to check your city and state regulations. Examples of businesses that might or might not be on the “essential” list of a moratorium or order include:
If you violate the regulations by operating a non-essential business, your business might face penalties. In some areas, you could be charged with a misdemeanor, which means potential jail time and fines. But read on to see whether your non-essential business might still be able to carry on.
You might be able to operate a non-essential business without violating the law, as long as doing so will not result in people violating the shelter-in-place orders. For example, you and your employees might be able to operate the business from home. An accountant could continue to prepare tax forms from home; a yoga teacher might offer classes online instead of in a studio, and a lawyer could offer consultations and prepare documents from home.
Some owners of non-essential businesses have engaged in the following “work-arounds” to the problem of shuttered doors. These owners have lost sight of the purpose of shelter laws, by doing the following:
It is important to check with your local government agencies, including state, county, and city government websites, to see what regulations may apply to you. Some areas do not provide as much guidance as others, and it can be difficult to determine if your business is essential. You can check with other similar businesses in your area to see how they are interpreting the rules. However, if the other business is wrong, this is no defense to violating the regulation and you could still face a penalty. If in doubt, it is best to contact a government official.
Finally, understand that these regulations are changing frequently as time goes on. Be sure to check back for updates, such as when the orders might be lifted, and additional regulations that could apply to your business.