Is Your Business “Essential”? More Guidance From Governor Hogan’s Office

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As Maryland businesses know, Governor Hogan signed an Executive Order closing all non-essential businesses to the general public at 5 p.m. Monday, March 23, 2020. His office has since provided three separate Interpretive Guidance memos, listing the types of businesses deemed essential. The latest Guidance also provides further information regarding what actions non-essential businesses can continue to engage in, as well as how to determine whether a business is essential or not.

The (Ever-Growing) List of Essential Businesses. As we discussed in our March 23 E-lert, the Governor’s Office provided an Interpretive Guidance with a long “non-exhaustive” list of “essential businesses” that are not subject to the closure order. The Governor’s Office subsequently released two more Interpretive Guidance documents, one on March 23 and another on March 24, adding more essential businesses as follows:

On March 23, 2020:

  1. Businesses and institutions involved in the research and development, manufacture, distribution, warehousing, and supplying of (i) pharmaceuticals; (ii) biotechnology therapies; and (iii) medical devices, diagnostics, equipment, and services.
  2. Auto and truck dealerships.
  3. Bicycle shops.
  4. Private security firms.
  5. Day cares (subject to any other Orders, directives, or guidelines that have been, or may be issued by the State Superintendent of Schools).
  6. Companies providing moving and storage of household items.
  7. Printers and sign shops.
  8. Companies and organizations providing support for persons with intellectual or developmental disabilities.
  9. Engineering, surveying, architectural, and interior design firms.
  10. Title companies.
  11. Motorcycle parts stores and repair shops.
  12. Companies that provide portable tents, portable flooring, portable lighting, portable toilets, portable handwashing stations, portable HVAC and other related equipment.
  13. Companies that rent tools and/or equipment.

This guidance offers further advice to retail establishments, as follows: “Retail establishments that remain open are strongly encouraged to modify their operations to conduct as much business as possible remotely, and to limit in-store interactions where practicable (e.g., by making products available for delivery or curbside pick-up to limit instore browsing).”

On March 24, 2020 the following businesses were also deemed essential:

  1. Greenhouses and nurseries.
  2. Companies that provide waste management services, including without limitation, waste pickup and hauling, and dumpster rental.
  3. Residential cleaning services.

Guidance for Non-Essential Businesses. In our March 24 E-lert, we discussed informal guidance the Governor’s office had provided with regard to the continued operation of non-essential businesses. The March 24 Guidance further clarifies that the Governor’s Order requires non-essential businesses to close to the general public, but they can continue operating.

Staff of such non-essential businesses are permitted to be present in the workplace for the following reasons, while observing the recommended social distancing and environmental cleaning/disinfecting protocols from the federal Centers for Disease Control and Prevention (CDC), the Maryland Department of Health (MDH), and the Occupational Safety & Health Administration (OSHA):

  1. Facilitating remote working (“telework”) by other staff.
  2. Maintaining essential property.
  3. Performing essential administrative functions, including picking up mail and processing payroll.
  4. Preventing loss of, or damage to property, including preventing spoilage of perishable inventory.
  5. Caring for live animals.
  6. Continuing to sell products on a delivery or “curbside” pick-up basis.

Determining Whether A Business Is “Essential” or “Non-Essential.” The March 24 Guidance also sets forth the analysis applicable to determining the essential/non-essential status of a business.

The first step is to review the Governor’s Order, the available Interpretive Guidance, and guidance from the Cybersecurity and Infrastructure Security Agency (see https://www.cisa.gov/identifying-critical-infrastructureduring-covid-19) to confirm whether the business is listed.

If the determination is still unclear, the second step is to “make a good faith determination” based on:

  1. the Order’s purpose, which is to “reduce the threat to human health caused by the transmission of the novel coronavirus in Maryland, and to protect and save lives”; and
  2. how similar businesses, organizations, and facilities are treated under the Order.

Although not set forth in the Guidance, business owners who are still unclear as to whether their business is “essential” may reach out to Maryland’s Department of Commerce at [email protected] with questions. Businesses should provide a short, concise summary on why they should receive an essential service designation.

The Guidance also cautions that if the business decides to remain open pending legal advice, it must “strictly adhere to all applicable guidance from the CDC, MDH, and OSHA regarding social-distancing and environmental cleaning and disinfection.”

Clearly this is a fast-moving and ever-changing situation. We will continue to keep you updated as to further developments regarding the Governor’s Order.