What Does Governor Hogan’s “Stay-at-Home” Order Mean for Employers?

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Governor Hogan has issued an Executive Order, effective 8:00 p.m. on March 30, 2020, requiring all Maryland residents to stay at home except to conduct essential activities. Certain employees of essential businesses and non-essential businesses, however, may continue to travel to work, as described below.

General Stay-at-Home Requirements: Under the Order, Maryland residents may leave the home only for the following reasons:

  • to obtain necessary supplies and services for themselves (including pets and livestock) or another household;
  • to seek medical care, medication or medical supplies for themselves or another household (including pets and livestock);
  • to receive meals or materials for distance learning from an educational institution;
  • to engage in outdoor exercise while observing social distancing guidance;
  • to comply with an order from law enforcement or a court; or
  • to travel to a government building for a necessary purpose.

Essential Businesses: Employees are permitted to commute to the worksite, and to/from customers in order to deliver goods or perform services. The Governor’s Office has previously issued three separate Interpretive Guidance memos, listing the types of businesses deemed essential: on March 23, another later that same day, and the last on March 24.

 Non-Essential Businesses: The Order reiterates that non-essential businesses are closed to the general public. As we noted with regard to Governor Hogan’s earlier Executive Order requiring such closure, employees of non-essential businesses can continue teleworking. In addition, the Order specifies that employees may be on-site for the following “Minimal Operations” reasons:

  1. Facilitating remote working (a/k/a/ telework) by other staff;
  2. Maintaining essential property;
  3. Preventing loss of, or damage to property, including to prevent spoilage of perishable inventory;
  4. Performing essential administrative functions, including to pick up mail and process payroll;
  5. Caring for live animals; and
  6. In the case of retail establishments, continuing to sell retail products on a delivery basis. Note that curbside pickup is no longer permitted.

Determining Whether a Business Is Essential or Non-Essential: As we discussed in our March 25, 2020 E-lert, Is Your Business “Essential”? More Guidance From Governor Hogan’s Office, the Governor’s March 24 Interpretive Memo set forth the analysis businesses should use to determine whether they are essential. We summarize again here as follows:

  • 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:
    • 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
    • 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.

Penalties: Law enforcement officers are authorized to enforce the Order. Violators will be guilty of a misdemeanor and subject to up to one year imprisonment and/or up to a $5,000 fine.

What Employers Should Do: In compliance with Governor Hogan’s previous Order closing non-essential businesses to the general public, most affected employers had already switched to telework, if possible, and had placed the remaining employees in some sort of non-work status. To the extent that employees are required to travel to work, either because they are employed by an essential business or because they are performing the permitted Minimal Operations for a non-essential business, employers may wish to provide them with a letter that explains their status should they be stopped for questioning by law enforcement. You should contact your employment counsel if you need assistance with this.

For employers covered by the recently-enacted Families First Coronavirus Response Act (i.e. private employers with fewer than 500 employees, subject to certain exemptions, and some public sector employers), please note that the Governor’s Order is not an order of isolation or quarantine that would enable employees to use the Act’s paid sick leave. For more on the Families First Coronavirus Response Act, please see our COVID-19 FAQs  and our E-Lerts, DOL Answers More Burning Questions and Provides a Poster About Families First Coronavirus Response Act and DOL Explains Small Business, Healthcare Provider and Emergency Exemptions to Families First Coronavirus Response Act, and Many Other Things.