Ohio Department of Health: Business Must Cease Unless Essential. Good News, Your Business May Very Well Be Essential

Alerts / March 23, 2020

In continuing efforts to combat the COVID-19 health emergency, Ohio Governor Mike DeWine on March 22, 2020 issued through the Department of Health a state-wide “Stay at Home Order” for Ohioans. This Order takes effect March 23, 2020 at 11:59 PM and stays in effect through April 6, 2020. This Order may be extended as circumstances evolve. The most important impact of this Order for businesses in Ohio is that all “non-essential” business operations must cease beyond “Minimum Basic Operations.”

The Order provides multiple broad categories of “essential.” These include Healthcare and Public Health Operations, Human Services Operations, Essential Government Functions, and Essential Infrastructure. More helpfully, the Order provides several additional categories that provide specificity.

  1. CISA List-The Order incorporates by reference the Department of Homeland Security’s recently issued order on essential businesses. This includes a multitude of businesses (specifying applicability to both the private and public sector) related to “essential infrastructure” including-
    • Communications
    • Critical Manufacturing
    • Chemical Industries
    • Commercial Facilities
    • Dams
    • National Security Industries
    • Emergency and Law Enforcement Services
    • Energy Industries
    • Financial Services
    • Food and Agriculture
    • Government Facilities
    • Nuclear Facilities
    • Water Services
    • Transportation
    • Healthcare
    • This list ultimately overlaps with many of the other categories covered by this Order.
  2. Stores that Sell Groceries and Medicine - The Order also includes any stores that sell “groceries and medicine.” The term “groceries” is construed broadly. This includes food and beverage items but also includes pet food, cleaning, and personal care products. The Order also specifically exempts stores selling over-the-counter medication, sanitation products, and products necessary to the essential operation of residences. Supply chains and administrative support operations are specifically included.
  3. Food, Beverage, and Licensed Marijuana Production and Agriculture - All food and beverage manufacturers. The Order specifically includes businesses related to medical marijuana production, dispensaries, and cultivation.
  4. Organizations that Provide Charitable and Social Services - Businesses and religious/non-profit organizations that provide food, shelter, and social services for the economically disadvantaged or needy. Any institution serving the disabled or anyone needing assistance as a result of the Covid-19 Emergency.
  5. Religious Facilities - All religious facilities including those that serve religious gatherings such as funerals or weddings.
  6. Media - Newspapers, television, radio, and other services.
  7. Gas Stations and Businesses Needed for Transportation - this includes auto supply, repair shops, farm and construction equipment sale, boat repair, and bike shops.
  8. Financial and Insurance Institutions - Banks, currency exchange institutions, consumer lenders including but not limited to pawnshops, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and future exchanges, payday lenders, affiliate financial institutions, bond issuers, any related financial institutions and any institution selling financial products. Insurance companies and all related claim and agency services.
  9. Hardware and Supply Stores - This also includes all businesses that sell electrical, plumbing and heating products
  10. Critical Trades - A broad category that includes construction and building services such as plumbers, electricians, cleaning staff, security staff, operating engineers, HVAC workers, painters, movers and any other business involved in maintaining the safety, sanitation, and essential operation of residences.
  11. Mail, Post, Shipping, Logistics, and Pick-Up Services - All shipping and delivery services whether goods or services.
  12. Educational Institutions - All learning institutions, however, the Order specifically notes that this does not amend any other closing orders.
  13. Laundry Services - All laundry and dry cleaning services.
  14. Restaurants That Provide Delivery or Takeout - The Order specifically notes that all food must be provided for off-site consumption.
  15. Businesses that Sell or Manufacture Supplies to Work from Home - All Businesses that provide supplies that allow employees to work at home such as cell phones and laptops.
  16. All Businesses that Provide Support - Businesses that provide materials to other essential businesses. These include businesses that provide products such as ingredients, building materials, and hygiene products.
  17. Transportation - All transportation providers. The Order specifically notes Uber and Lyft are essential as well as all logistics providers.
  18. Home Based Care - This includes nannies, caregivers, and in-home meal delivery.
  19. Residential facilities - All residential facilities that cater to adults and pets.
  20. Professional Services - All legal, accounting, insurance, and real estate services.
  21. All Manufacturers, distributers, and Supply Chain for Critical Products and Industries - This is a broad category including any business in manufacturing, distribution, and supply for any other essential business on this list.
  22. Labor Union Services - Any labor union activities related to workers involved in other essential businesses. The Order encourages any labor checks be done remotely when possible.
  23. Hotels and motels are also deemed essential.
  24. All funeral services are deemed essential.
If I am Non-Essential, What Can I do?

If it is determined your business is non-essential, the Order provides some relief. You may still operate your business to the extent employees can work remotely. The Order also states that you may continue to conduct the minimum necessary to ensure business inventory and properties are preserved, as well as perform duties needed to enable employees to work from home.

Conclusion: Take Immediate Steps to Comply by Protecting Public Safety and Your Business

The closure Order has wide implications, but the text of the order provides many exclusions. Several states such as California, Pennsylvania, Delaware, Connecticut, Kentucky, and Illinois have issued such orders. Any business should first discuss with an attorney before any business operations cease and should also consider other important changes to federal law related to leave, including paid leave. Even if your business is ultimately considered non-essential you may nonetheless operate your business remotely and perform the duties necessary to preserve the business.

Authorship Credit: M. Scott McIntyre and Sean P. Ryan

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