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West Virginia Stay at Home Order Limits Many Employers’ Operations, Permits Others

On March 23, 2020, West Virginia Governor Jim Justice announced the issuance of a statewide “Stay at Home” order, effective March 24, 2020 at 8:00 p.m. Executive Order No. 9-20 is available in its entirety here. In an effort to slow the spread of COVID-19, the Order imposes substantial restrictions upon many businesses and their employees in West Virginia. As detailed below, a central determination for employers is whether their respective business falls under the Order’s definition of “Essential Businesses and Operations,” or any of the enumerated exceptions for the closure of non-essential businesses.

  1. Essential Businesses and Operations shall continue to operate.

The Order directs all “Essential Businesses and Operations” to remain open. “Essential Businesses and Operations” exempt from the Order’s requirement to cease activities include industries and employees identified in the U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency’s (CISA’s) March 19, 2020 Memorandum of Identification of Essential Critical Infrastructure Workers During COVID-19 Response and “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response” (collectively, the “CISA Guidance”).[i] In addition to those identified in the CISA Guidance, the following industries and businesses are defined as “Essential Businesses and Operations” in the Order:

  • Health care, public health operations, and health insurance companies;

  • Grocery stores and pharmacies;

  • Food, beverage, and agriculture;

  • Essential governmental functions;

  • Human services organizations and childcare facilities and providers;

  • Essential infrastructure;

  • Coal mining and coal-fired electric generation facilities;

  • Manufacturing, distribution, and supply chain for critical products and industries;

  • Transportation and travel related businesses and gas stations;

  • Financial and insurance institutions;

  • Hardware and supply stores;

  • Critical trades;

  • Mail, post, shipping, logistics, delivery, and pick-up services;

  • Religious entities;

  • Educational institutions;

  • Laundry services;

  • Supplies to work from home;

  • Supplies for Essential Business and Operations;

  • Home-based care and services;

  • Residential facilities and shelters;

  • Professional services;

  • Media and first amendment protected speech;

  • Hotels and motels; and

  • Funeral services.

Clarification regarding each of the above-listed Essential Businesses and Operations, including specific examples, are set forth in the Order.

  1. Non-Essential businesses and operations must cease operations.

The Order incorporates the closure of certain businesses and limitations upon business operations imposed by Governor Justice’s recent Executive Orders. In relevant part, these include the following:

  • Executive Order 6-20 ordered the closure of all barbershops, nail salons, and hair salons.

  • Executive Order 3-20 ordered the closure of all fitness centers, gymnasiums, recreation centers, and similar businesses or entities where the public tends to congregate for recreation, sport, or similar leisure activities.

  • Executive Order 2-20 ordered the closure of all casinos and prohibited any on-premises occupancy for all restaurants and bars, except to allow for take-away, delivery, and drive-through/drive in orders.

In addition to the foregoing, this Order states that all non-essential businesses and operations in West Virginia shall cease all activities within the state, except for “minimum basic operations.” Non-essential businesses may continue such minimum basic operations which: 

  • Are necessary to maintain the value of the business's inventory;

  • Preserve the condition of the business’s physical plant and equipment;

  • Ensure security;

  • Process payroll and employee benefits or related functions; and

  • Are minimum, necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

Further, all “places of public amusement,” whether indoors or outdoors, shall be closed. These include, but are not limited to:

  • Locations with amusement rides;

  • Carnivals;

  • Zoos;

  • Museums; 

  • Arcades;

  • Fairs;

  • Pool halls;

  • Bingo halls;

  • Malls (except where stores in a mall that have a direct outdoor entrance and exit that provide essential services and products as defined in the Order);

  • Children's play centers;

  • Playgrounds;

  • Bowling alleys;

  • Movie and other theaters;

  • Concert and music halls;

  • Adult entertainment venues;

  • Racetracks;

  • Social clubs; and

  • Other similar businesses.

The Order sets forth two exceptions for the closure of non-essential businesses. First, non-essential home-based businesses may continue to operate, so long as any employees or contractors of such businesses perform activities from their own residences. Second, non-essential small businesses that do not invite in members of the general public and have five or less employees in the office may continue to operate, as long as businesses ensure that proper social distancing and hygiene practices are maintained.

  1. Individuals directed to stay home; social gatherings prohibited.

The Order significantly impacts individuals. All individuals within the State of West Virginia are directed to stay at home or their place of residence unless performing an “essential activity.” Essential activities include:

  • Obtaining food, medicine, and other similar goods necessary for the individual or a family member of the individual;

  • Obtaining non-elective medical care and treatment and other similar vital services for an individual or a family member of the individual;

  • Going to and from an individual's workplace if such workplace and/or work is included in the definition of “Essential Businesses and Operations” as defined above;

  • Going to and from the home of a family member;

  • Going to and from the home of another individual who, under the terms of a parenting plan or similar agreement, is entitled to visitation with or the care of a child;

  • Going to and from an individual's place of worship; and

  • Engaging in outdoor activity, provided, that individuals at all times and as much as reasonably possible maintain social distancing of six feet from one another and abide by a 10-person limitation on gathering size.

Additionally, all public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes permitted by the Order. Any gathering of more than 10 people is prohibited, unless otherwise exempted. Gathering of members of a household or residence are not prohibited.

This Order and all previous Executive Orders related to COVID-19 remain in effect until terminated by Governor Justice.

This Order has far-reaching implications for businesses and their employees throughout West Virginia. 

[i] The CISA Guidance includes employees working in the following industries: (1) Law Enforcement, Public Safety, First Responders; (2) Food and Agriculture; (3) Energy; (4) Water and Wastewater; (5) Transportation and Logistics; (6) Public Works; (7) Communications and Information Technology; (8) Other Community-Based Government Operations and Essential Functions; (9) Critical Manufacturing; (10) Hazardous Materials; (11) Financial Services; (12) Chemical; and, (13) Defense Industrial Base. The CISA Guidance is available at this link.

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About this Author

 Raymond L. Harrell, Jr Associate Dinsmore Employment Labor Government Relations

Ray is a labor and employment attorney who focuses his practice on employment litigation. He regularly represents companies in the areas of discrimination, harassment, wrongful termination, wage and hour, deliberate intent, unemployment appeals, unfair labor practice, and general litigation. He also has experience counseling clients through pre-litigation employment issues, as well as drafting employee handbooks and policies, severance agreements, and other employment contracts. In addition to labor and employment law, Ray has defended companies and municipalities in cases involving...