Darrell Clay

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.

Darrell A. Clay is a partner at Walter | Haverfield who focuses his practice on labor and employment and litigation. He can be reached at dclay@walterhav.com or at 216.928.2896.