October 22, 2020

Volume X, Number 296


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Taking Care of Essential Business Despite Growing Number of Shelter in Place Orders

A growing number of states, five as of the publication date of this e-alert, along with the Navajo Nation and a significant number of counties and municipalities, have issued mandatory “shelter in place” or “stay at home” orders. Many other states, counties, and municipalities have ordered that all nonessential work stop in their areas. Although the shelter in place orders are more restrictive (significantly limiting the movement of residents and the operation of businesses in each affected jurisdiction), the essential work only orders are also incredibly disruptive to employers and employees alike. 

While there is a distinct chance the federal government will issue similar restrictions for the entire country in the near future, at this time no federal agency has mandated the closure of businesses. There are, however, many federal agencies actively involved in managing the pandemic crisis. Particularly, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued guidance to state and local “critical infrastructure” workforce of multiple industries: in other words, the employees whose services are essential for certain businesses that must remain open during the COVID-19 pandemic. This guidance will advise employers along with additional jurisdictions as they develop their “red alert” orders. It will also guide all jurisdictions in interpreting their own orders as they make enforcement decisions or otherwise interpret their orders based on the circumstances as they unfold.

Every business needs to prepare for the possible imposition of such orders regardless of the current situation in their state. While the shelter in place orders have some differences, they typically have the following common characteristics:

  1. Businesses not deemed “essential” are ordered to ceases operations or greatly restrict operations to work that can be completed by employees remotely in their homes.

  2. Only essential employees or employees needed for minimum basic operations may leave their homes to support “essential businesses.”

  3. Residents must stay in their homes except to engage in “essential activities,” when they are qualifying employees of an essential business, or for outdoor exercise during which social isolation practices must be practiced.

  4. Travel is greatly restricted with a handful of exemptions.

Both the shelter in place and nonessential business restriction orders have significant implications for all businesses, which is why we suggest businesses take the following steps:

  1. Interpret the specific requirements of each applicable order.

  2. Determine if the business qualifies as an essential business.

  3. If the business qualifies as an essential business, determine the minimum basic operations of the business and which workers qualify as essential employees.

  4. Develop notices to employees regarding the essential status of the business, and written confirmation or certifications for essential employees to present when stopped by or dealing with police or public agencies charged with enforcing the order.

  5. Review staffing needs and placement options, including paid and unpaid leaves, furloughs, and layoffs.

  6. Develop effective notices to suppliers, vendors, and customers regarding the status of the business under the order.

  7. Consider possible support and assistance offered at the state and federal level to support businesses impacted by these orders.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 83



About this Author

Denise K. Drake, Polsinelli, Workplace Lawsuits Attorney, multi-defendant employment actions lawyer

Denise Drake is known for her creative and practical approach to employment law issues, as well as her sincere interest in helping employers improve their workplaces, proactively avoid litigation, and strategically defend against lawsuits. Denise has significant experience defending companies in employment lawsuits, including collective, class, multi-plaintiff, and multi-defendant employment actions. She has obtained defense verdicts in trials and arbitrations involving:

  • Sexual harassment claims

  • Sex...

Andrew B. Cripe  Chicago Shareholder  Practice Chair Employment Advice & Investigations Employment Litigation False Claims Act Defense
Shareholder | Practice Chair

Andy Cripe focuses on supporting management, human resources and in-house legal teams with all aspects of workforce management. Clients also look to Andy for general counsel in connection with commercial transactions and disputes, including enterprise-wide contract and risk management. As chair of the firm's Employment Advice and Investigations group, Andy’s employment law practice includes representing employers in lawsuits involving:

  • Class actions
  • Harassment and discrimination claims
  • The Fair Labor Standards Act
  • The Americans with Disabilities Act
  • Enforcement of restrictive covenants

He regularly counsels employers and provides manager and employee training to minimize potential employment liabilities and ensure compliance with the many state and federal laws governing the workplace. He also assists employers with international employment issues such as cross-border employment and severance agreements. His traditional labor law practice includes representing management in unfair labor practice charges, collective bargaining, mass layoffs and plant closings.

Lindsay L. Ryan Principal Polsinelli Labor and Employment Employment Litigation

Lindsay is committed to providing reliable counsel to strategically solve client matters and address their litigation needs. Clients rely on Lindsay to develop solutions and effective arguments with respect to their complex legal challenges. Her practice focuses on advising employers on compliance with both state and federal requirements for disability accommodation, leaves of absence, wage and hour, harassment and discrimination complaints, workplace investigation, reductions in force, disciplinary actions and terminations. She represents clients in all forums, including state and federal...

Kara M. Friedman Health Care Attorney Polsinelli Law Firm

Kara Friedman’s extensive understanding of the health care industry allows her to offer advice on service line development activities and assist clients in developing feasible strategies to enhance the delivery of health care in a collaborative way.

Kara's practice is devoted to the general representation of health care providers and includes advising clients regarding the structures around and the relationships among health care providers within the complex federal and state regulatory environment. She has an active Certificate of Need practice...