Updated: May 28, 2020
Dear Clients, Friends and Partners:
Walter | Haverfield
This will be updated accordingly as the situation changes.
Updated: May 28, 2020
Dear Clients, Friends and Partners:
Walter | Haverfield
This will be updated accordingly as the situation changes.
*Read about Ohio’s Amended Stay At Home Order here.
March 23, 2020
During a press conference on Sunday, March 22, 2020, Ohio Governor Michael DeWine disclosed that Ohio would join California, Illinois, Connecticut, New York, and a number of other major cities in issuing a so-called “shelter in place” or “stay at home” Order. This is the latest measure in Ohio’s aggressive attempt to control the spread of COVID-19 (coronavirus) by implementing social distancing.
The Order, issued by Ohio Department of Health Director Dr. Amy Acton, pursuant to her authority under R.C. 3701.13, broadly provides that “all individuals currently living within the State of Ohio are ordered to stay at home or at their place of residence except as allowed in this Order.” (Persons experiencing homelessness are expressly exempt, but are urged to locate shelter.) Furthermore, other than those who are home-based, all non-essential businesses and operations must cease, except for Minimum Basic Operations (discussed below). Additionally, “all public and private gatherings of any number of people occurring outside a single household or living unit are prohibited” unless expressly authorized by the Order. Lastly, the Order closes all places of public amusement:
All places of public amusement, whether indoors or outdoors, including, but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, museums, arcades, fairs, children’s play centers, playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters, concert and music halls, and country clubs or social clubs shall be closed.
The only exceptions to the Order’s prohibitions are for individuals engaged in Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations. The Order takes effect at 11:59 p.m. on Monday, March 23, 2020, and continues until at least April 6, 2020 or until Dr. Acton orders otherwise.
Individuals may leave their home for a broad range of Essential Activities. These include tasks related to personal health and safety, to obtain necessary supplies and services, for outdoor activity (respecting physical distancing procedures), to take care of or transport family members, friends, or pets, and for certain types of work. The Order specifically permits Ohioans to attend weddings and funerals. Persons may also leave to work for or obtain services through healthcare and public healthcare operations. In addition to hospitals, pharmacies, and other traditional healthcare institutions, this exemption includes organizations collecting blood, platelets, and plasma; medical marijuana dispensaries and cultivators; eye care centers; home healthcare providers; and others. However, “fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities” are expressly excluded from this definition.
Essential Activities also include obtaining services from or working for any of the following Ohio departments: Aging; Developmental Disabilities; Health; Job and Family Services; Medicaid; Mental Health and Addiction Services; Veterans Services; and Youth Services. Also included is Opportunities for Ohioans with Disabilities. Essential Activities also include work and services necessary to support Essential Infrastructure Operations, such as food production and distribution; fulfillment centers; construction; building management and maintenance; airports; operation and maintenance of utilities; cybersecurity operations; solid waste and recycling collection and removal; and internet, video, and telephone communications systems.
Essential Government Operations is defined to include all first responders; emergency management personnel; emergency dispatchers; legislators; judges, court personnel, jurors and grand jurors; law enforcement and corrections; and the like. This category also includes services provided by the State or any political subdivision “needed to ensure the continuing operation of government agencies or to provide for or support the health, safety and welfare of the public.”
The Order provides a lengthy list of what constitutes Essential Businesses and Operations. Some of these are obvious: stores selling groceries and medicine; food, beverage, and licensed marijuana production and agriculture; organizations providing charitable and social services; religion entities; media, including newspapers, television, radio, and other media services; gas stations and businesses needed for transportation; financial and insurance institutions; funeral services; and more. Also included in this category are “First Amendment protected speech” (though with no specific guidance as to the meaning of this phrase); hardware and supply stores; laundry services; restaurants providing off-premises consumption; supplies to work from home and supplies supporting Essential Business and Operations; hotels and motels; and professional services, including attorneys, accountants, insurance agents, and real estate professionals. Finally, the Order includes in this definition all Essential Businesses and Operations described as such in a March 19, 2020 memorandum issued by the Department of Homeland Security’s Cybersecurity & Critical Infrastructure Security Agency.
As noted earlier, the Order permits non-exempt businesses to continue Minimum Basic Operations. Those are defined as the minimum amount of work necessary to maintain the value of the business’s inventory, preserve physical plant and equipment, ensure security, process payroll and benefits, and activities that are necessary to facilitate employees’ continued ability to work remotely.
Persons who are using shared space or are outside the home, including those using public transportation, are to adhere to required physical distancing protocols. This includes those persons who are engaging in Essential Travel, that is, travel to support Essential Activity, Essential Governmental Functions, Essential Businesses and Operations, and Minimum Basic Operations.
The Order makes clear its intention is “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.” The Order is subject to enforcement by State and local law enforcement authorities. Violations are second-degree misdemeanors, subjecting the offender to 90 days in jail and a $750 fine.
Finally, the order requires that businesses and employers implement a number of actions, including:
The State has issued an FAQ, attempting to address many basic questions about the Order. But many other questions remain unanswered at this early stage. Walter | Haverfield attorneys are here to advise you in determining whether your business may continue normal operations under one of the Order’s exemptions or must take other measures to comply.
At Walter | Haverfield, we understand the difficulties and uncertainties that you’re facing with regards to the COVID-19 pandemic. We want to assure you that we are here to help. Our team is committed to providing counsel and advice on a wide range of issues, including:
Labor and Employment: Compliance with Families First Coronavirus Act; regulating employee health and safety, including questions of quarantine, travel restrictions, testing, privacy; leave policies and legal compliance; wage and hour concerns; work-from-home policies; shutdown/layoff issues, including WARN Act compliance; unemployment benefits
Employee Benefits: Implications of Families First Coronavirus Response Act on continuation and payment arrangements during leaves; HIPAA compliance; potential waiver of copays/coinsurance and deductibles for COVID-19 testing and treatment; potential changes to 401 (k) plan hardship and loan provisions; service provider agreements and obligations
Education: Employment issues; leaves; benefits; contracts (certified, classified and supplemental); accommodations, remote work arrangements; FLSA; FMLA; OSHA/ADA requirements; discrimination claims; labor relations issues (MOUs, grievances and bargaining); student issues (student misconduct during remote instruction, student privacy issues); special education issues (provision of services, compliance issues, compensatory education); vendor contract issues; Sunshine Law issues
Hospitality & Liquor Control: Mitigating risk while restaurants and bars are closed, working within rules and regulations to allow for carry-out and delivery, how to incorporate safety measures into kitchen operations, physical premises restrictions, wage and hour considerations, alcohol regulations for carry-out and delivery
Personal Planning: Health care and estate planning documents
Real Estate: Impact of force majeure clauses in real estate-related documents (including leases, purchase and sale agreements, construction contracts) on monetary and non-monetary obligations; declarations of Emergency and Public Health Orders: Compliance with Closure Directives; insurance issues, evictions, foreclosures and other court proceedings; real estate financing document issues including monetary and non-monetary covenants compliance and default
Business Operations: Business interruption; performance delays and force majeure events in contracts; anticipating and negotiating implications in transactions and M&A contracts
Construction: Negotiating and enforcing contract terms addressing force majeure, supply chain disruption, changes for costs of supplies and labor, and excused performance; application of the doctrines of impracticability/commercial frustration and impossibility of performance to existing contract obligations, evaluation of builder’s risk, general liability and similar insurance policies
Litigation: Contract disputes involving COVID-19-related contract non-performance or performance delays, including force majeure events and other supply chain disruptions
Banking and Finance: Force majeure, material adverse effect, cessation of business and other relevant clauses in financing documents
Business Restructuring, Creditors’ Rights and Bankruptcy: How to effectively address operational, payment and cash-flow difficulties, customer and vendor defaults and insolvency proceedings, and the enforcement of rights and remedies
Environmental: Use of force majeure and similar provisions in environmental statutes, regulations, government orders, or permits by companies to delay, without penalty, required sampling events, remediation deadlines, air permit testing, wastewater record keeping, monitoring, etc.; work-related employee cases of COVID-19 and OSHA’s employee illness and injury record-keeping regulation; planning and implementation of temporary or permanent facility closures
April 3, 2020
Twelve days after issuing an initial “Shelter In Place”/“Stay At Home” Order, Ohio Governor Michael DeWine and Ohio Director of Public Health Dr. Amy Acton announced during a news conference on April 2, 2020 the issuance of an amended order. Effective at 11:59 p.m. on Monday, April 6, 2020, and lasting until at least 11:59 p.m. on Friday, May 1, 2020, the Amended Order largely preserves the restrictions implemented in an effort to “flatten the curve” and prevent the spread of COVID-19 (coronavirus). However, in addition to providing a number of important clarifications for Ohioans and Ohio businesses, the Amended Order also imposes additional restrictions.
Initially, the Amended Order explains its application to businesses that consist of a single person. Many had questioned whether single-employee businesses could continue to operate under the initial order if they did not qualify as “Essential Businesses and Operations.” According to the Amended Order, such businesses may continue to operate “so long as all safe workplace safety standards are met.”
Businesses selling groceries and medicines, which are defined as Essential Businesses and Operations and thus may continue to operate, now must adopt a series of measures to help mitigate the risk of viral spread. Stores must “determine and enforce” a maximum building capacity under which all occupants “may safely and comfortably maintain a six-foot distance from each other.” (Use of the term “occupants” seems to imply both customers and employees.) That number must be prominently displayed at every entrance. All baskets, shopping carts, and the like must be properly cleaned between each use. For in-store lines, such as those at cash registers, marks must be made delineating the six-foot minimum distance requirement.
The Amended Order clarifies that the prior exception allowing travel to obtain necessary supplies and services includes boats. It further states that this exception allows continued operation of showrooms for automobiles and boats, as well as delivery of both. Finally, it explicitly allows persons to access self-storage facilities. Garden centers and nurseries are now specifically included with hardware and supply stores as being authorized to continue operating.
Businesses focused on recreation should note the Amended Order specifically prohibits multiple additional categories of activities. This includes the complete prohibition of “[r]ecreational sports tournaments, organized recreational leagues, residential and day camps.” All pools, public or private, must be closed except for swimming pools for a single home. All campgrounds must be closed, although persons living in recreational vehicles who have “no other viable place of residence” may continue to live at a campground. Wedding receptions may have no more than ten persons in attendance; however, weddings and funerals are not subject to that limitation.
Persons entering Ohio and intending to stay must self-quarantine for 14 days. (This does not apply to persons who live outside the state but travel to Ohio for work or to obtain essential services.) Persons who have tested positive for, are presumptively diagnosed with, or are exhibiting symptoms of COVID-19 are barred from entering Ohio unless they are (i) doing so pursuant to medical orders to receive medical care, (ii) being transported by an emergency medical service, (iii) driving or being driven directly to a medical provider for initial care, or (iv) a permanent resident of Ohio.
On the enforcement front, the Amended Order states that violations are punishable as second-degree misdemeanors. This was understood to be true under the initial order, but the Amended Order now specifically references the applicable provision of the Revised Code. The Amended Order again states local health departments may enforce the various restrictions, but now also provides that local departments are not required to “provide advisory opinions to nongovernmental entities.”
The Amended Order includes a procedure for resolving disputes about the application of terms. Under Section 23, where two or more local health departments issue conflicting determinations, a Dispute Resolution Committee appointed by the Department of Health shall review the conflict and “make a determination as to the application of this Order to the conflict.” That determination is final.
Earlier this week, one County Prosecutor filed an action to prohibit the continued operation of a business the local health department deemed non-essential and ordered closed – a store selling vaping supplies. This followed at least 37 other closure orders from one county health department for businesses such as car washes, a fitness center, a private playground, and a private college that were deemed non-essential. In addition, a number of individuals have been charged with criminal violations of public health restrictions, though typically in association with other offenses. And, after Governor DeWine was questioned during a recent press conference about a national hobby store chain that had quietly reopened its stores in Ohio, Attorney General Dave Yost issued a cease and desist letter and the stores promptly closed. It appears that if Ohioans will not voluntarily comply with the Director of Health’s orders, compliance will be compelled through all necessary means.