April 07, 2020

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Tracking & Analysis of State and Local Orders Affecting Manufacturing & Warehousing Operations - JD Supra

Most orders do not require obtaining any special authority to continue to operate for those businesses that are clearly defined as essential in the order. Otherwise, some orders and corresponding guidance provide a process to request an exemption to the order.

We are tracking these orders for our manufacturing and distribution clients across the country, as well as providing tips for what they can do before and after an order is in place.

What Companies Can Do Before or Once an Order Is In Place

1. Review the federal Cybersecurity and Infrastructure Security Agency's memorandum. The March 19 memorandum issued by CISA identified "Essential Critical Infrastructure Workforce" during COVID-19. It has been informing many orders and will continue to do so, so companies should review it closely. Note: industries and workforces identified by CISA may be more broad than what individual jurisdictions may allow under stay at home orders.

2. Prepare a concise statement that you can use to request confirmation or designation as an essential business prior to or after the issuance of a stay at home order. This statement can also be the foundation of a request for an exemption from such an order or for responding to any enforcement action. Consider including the following:

  • Brief description of why it is essential for the business to remain open. Note if you have more than one facility or more than one production line and document how each facility and each line is essential.
  • Industry and customers served. Definitely reference the CISA memo if applicable.
  • Procedures and protocols in place to protect those employees still at work (e.g., social distancing, shift staggers, sanitizing, monitoring employee health, sick leave policy, out of work social distancing policy for those still reporting to work, reducing workforce to smallest number possible, deferring non-essential tasks and work, limiting access to the building to only those employees who are supposed to be at work at that time, etc. Note: be sure to internally document these procedures and communications to employees.)
  • Number of employees needed at the site(s) at any given time and explain if this is reduced to critical only from a normal operations level.
  • Steps taken to move workers to remote work and how many/what percentage are currently working remotely.
  • Contact person who can speak for the business and who has authority over the company's workforce.
  • Avoid including privileged or confidential information, and if provided to government officials, note that it is provided for the limited purpose of documentation that the operation is essential and that it should not be shared except as necessary for that singular purpose.

3. If possible obtain supporting documentation from customers that documents their need for continued delivery of your product.

4. In the event a company may not meet any essential business definition in an order, the company should also develop a plan for protecting its inventory, property, and continuation of essential services (payroll, accounting, supporting a now remote workforce) in a manner that would likely comply with a stay at home order (“Minimum Basic Operations”). Based on a review of existing orders, such a plan should involve social distancing and only the most essential personnel working on-site. Keep a statement regarding such a plan ready if there is a need to respond to any enforcement action.

5. While it is unlikely at this time employees will be stopped on their way to work, employees may have concerns about still going to work. Companies that continue to operate under a stay at home order should communicate to employees why the business is essential and clearly designate those employees who are still working as essential. Also communicate steps being taken to minimize spread of COVID-19 at work.

Tracking & Analysis of Orders

Below is our roundup of orders impacting manufacturing and distribution clients across the country. Everything below is subject to change, and we will be updating this daily.

1. Executive Order N-33-20
Date: Issued March 19, 2020

Summary: Everyone in California is to stay home except as needed to maintain operation of the 16 "Critical Infrastructure Sectors" from the CISA memo, critical government services, schools, childcare, and construction.

Details: The executive order simply states that the 16 "Critical Infrastructure Sectors" shall be maintained. There is currently no guidance in the order or on California state websites on any necessity to obtain a special permit to operate or for employees to work and travel to work for businesses in those 16 sectors.

1. Executive Order No. 7H
Date: Issued March 20, 2020

Summary: Beginning 8:00 p.m. on March 23, all businesses shall covert to remote work unless an exempt business, which is an essential businesses or entity providing essential goods, services, or functions exempt.

Details: The Department of Economic and Community Development (DECD) has issued guidance as to what businesses are essential. They include "all manufacturing and corresponding supply chains, including aerospace, agriculture, and related support businesses." Requests by businesses to be designated as essential should only be made if they are not covered by the guidance.

1. State of Emergency Declaration, 4th Modification and 5th Modification
Date: Issued March 22, 2020, effective March 24, 2020

Summary: Residents should stay home unless attending to essential needs. Non-essential businesses should close or move their workforces to remote work. Only essential businesses may remain in operation and physically open.

Details: The 4th Modification for the emergency declaration offers very detailed lists of which businesses are essential and which ones are not. Essential businesses that remain open must follow CDC recommendations, have non-punitive sick leave, and maximize sick leave. The state has written recommendations for daily employee screening upon reporting to work. Violations may result in criminal charges. The 5th Modification allows non-essential businesses to conduct minimum basic operations to protect company inventory and property and facilitate a remote workforce. As of March 24, Delaware doesn’t not appear to have any process for obtaining an essential business designation or request a waiver.

1. Executive Orders
Date: Issued March 23, 2020

Summary: Across Georgia, the order closes bars and limits businesses to no more than 10 people in a location if six feet of separation cannot be maintained. The Department of Public Health may close any business not in compliance.

2. Atlanta Mayor’s Executive Order No. 2020-21
Date: Issued March 23, 2020

Summary: The order puts Atlanta under stay at home instructions with exemptions for essential businesses. Businesses that meet that criteria include businesses that supply products needed for people to work from home, businesses that supply other essential businesses with the support or supplies needed to operate, and businesses that ship or deliver groceries, food, goods, or services directly to residents.

1. Executive Order No. 2020-10 (8th COVID)
Date: Issued March 20, 2020

Summary: Only essential business and operations (which are health care, human services, essential government, and essential infrastructure) and minimum basic operations may continue to operate. Essential business and operations are meant to mirror those businesses which are set forth in the CISA memo.

Details: Essential infrastructure includes food production, utilities, water, distribution centers, ports, and telecommunications systems, all to be construed broadly to avoid impacts to essential infrastructure. Businesses that sell, manufacture, or supply essential businesses may operate. Minimum basic operations include activity to maintain inventory; preserve property, security, and payroll; and support remote workers. Businesses that continue to operate in compliance with the order shall comply with social distancing as defined in the order (six feet of separation, sanitizing, protecting vulnerable populations, etc.)

1. Executive Order 20-08
Date: Issued March 23, 2020

Summary: Residents should stay home unless for limited permitted purposes and all non-essential businesses and operations must cease.

Details: Essential business and operations may continue, including those businesses which supply qualifying companies. Those include the types described in the CISA memo. If a company does not meet the essential business and operations definition in the order, it may maintain minimum basic operations to protect company property and inventory, as well as facilitate remote work. Social distancing and sanitizing shall be observed at all times. Any employees who can do their job remotely must be accommodated. Allow sick employees to stay home. Minimize activities or suspend activities that can wait. As of March 24, there is not any guidance on requesting waivers from the order or confirmation that a business meets the essential business definition. This order is very similar to Ohio's.

1. Executive Order 2020-246
Date: Issued March 22, 2020

Summary: This order closes all non-life-sustaining in-person retail establishments.

1. Proclamation No. 33 JBE 2020
Date: Issued March 22, 2020, effective March 23

Summary: This is a general order requiring residents to stay home except for certain permitted activities. It closes certain non-essential businesses to the public. All businesses that remain open must practice social distancing and adhere to a 10-person gathering size limit.

1. Governor’s Order “COVID-19 Order No. 13
Date: Issued March 23, 2020, effective March 24, 2020

Summary: The governor’s order directs the public to stay home except for limited circumstances, and it closes all “non-essential” businesses. Massachusetts has defined essential businesses that may continue to operate as “COVID-19 Essential Services." These businesses closely track those in the CISA memo.

Details: The order affirmatively states that businesses that are within the COVID-19 Essential Services list need not take any further steps to continue operating and that no special designation or certification will be given. There is no mention of any consideration of waivers. The commissioner of public health shall issue further guidance for implementation. It specifies that civil and criminal penalties for violations may apply.

1. Executive Order 2020-21
Date: Issued March 23, 2020, effective March 24, 2020

Summary: Everyone in Michigan should stay home except for meeting basic needs and must practice social distancing while doing so. As of March 22, there is not yet any official guidance on requesting an exception if one’s business is not specifically excepted in the order.

Details: The order references and follows the CISA memo in identifying the critical infrastructure workers. “Minimum business operations” are also permitted to maintain the business property and inventory and to support remote workforce and process necessary transactions (payroll and benefits). Businesses who have a critical infrastructure workforce and continue in-person operations must implement social distancing at work, restrict the in-person workforce to no more than those strictly necessary, have cleaning standards, monitor employee health, and restrict those with symptoms or potential exposure from coming to work.

1. Executive Order No. 107
Date: Issued March 21, 2020

Summary: The order closes the majority of retail establishments except for necessities like grocery stores, takeout food, pet stores, medical supplies, etc. Social distancing in public is required. The order also directs people to stay home with some exceptions (getting essentials, going to work, caring for someone, etc.).

Details: Businesses must accommodate work from home wherever possible. For those at work, companies must minimize the workforce physically present.

1. Executive Order No. 202.6 modified by 202.8
Date: Issued March 18, 2020, updated March 20, 2020

Summary: Work from home is required beginning March 22, except for essential businesses or entities to include essential manufacturing such as food, chemicals, sanitary products, telecommunications, and more.

Details: A company may apply for a designation as an essential business if it is not listed in the executive order by filing a request with the Empire State Development Department. The request requires description of the business function and an argument as to why it should be considered essential, and it must be signed certifying it to be true.

1. Executive Order 118
Date: Issued March 14, 2020

Summary: As of March 25, North Carolina does not have a stay at home order from the governor, although he has issued an order closing dine-in restaurants. Representative Darren Jackson tweeted on March 21 that although the governor stated on March 20 that a shelter in place order was not planned, businesses could send information to Department of Public Safety regarding why they should be exempt from such a future order.

2. Joint Proclamation of Mecklenburg County and Charlotte
Date: Issued March 24, 2020

Summary: Residents of Mecklenburg County must stay home, except for limited activities that include travel within and outside the county for permitted purposes. Non-essential businesses must close, except for minimum basic operations. Any business still open must practice social distancing. The proclamation lists what businesses are essential, which includes those involved in the manufacturing, distribution, and supply chain of a wide range of industries.

1. Director's Stay at Home Order
Date: Issued March 22, 2020; effective March 24, 2020

Summary: This order from the director of the Ohio Department of Health requires people to stay home except for limited exceptions. Non-essential business and operations must cease.

Details: Essential businesses and operations may continue, which include those described in the CISA memo. Essential businesses and operations must comply with social distancing. Minimum basic operations are permitted to protect a business’s inventory and property, as well as to support remote work. This order is very similar to Indiana's.

1. Executive Order 20-12
Date: Issued March 23, 2020

Summary: This order specifies that remote work shall be facilitated to the extent possible. Businesses must designate an employee or officer to establish and enforce social distancing where remote work is not possible. Entertainment venues, dine-in establishments, personal (beauty) services, gyms, and certain retail stores are all closed.

1. Order of Governor dated March 19, 2020
Date: March 19, 2020, enforcement begins March 21, 2020

Summary: No business may operate unless it is “life sustaining” and follows social distancing or its employees telework.

Details: Many manufacturers are considered life sustaining. Any client operating in Pennsylvania should review the list carefully. There is also a statement that in "extenuating circumstances, special exemptions will be granted to businesses that are supplying or serving health care providers.” There is a form that businesses may submit online requesting a waiver from the order. This form requires (1) a justification, (2 a plan to meet CDC guidelines for employee safety, and (3) the number of employees who would need to be present at work (critical workers).

1. As of March 22, there are no orders from the governor in South Carolina, other than an order closing dine-in restaurants and limiting commerce. Governor McMaster tweeted on March 21 that a shelter in place order is not under consideration. Given the rapidly changing COVID-19 response we do not recommend any business take this as a directive to not prepare for such an order.

2. City of Charleston Emergency Ordinance on Stay at Home
Date: Issued March 24, 2020, effective March 26, 2020

Summary: The ordinance placed Charleston under a stay at home order with exceptions for businesses providing essential services, which includes a variety of manufacturers. Those that remain open must "take all reasonable measures, including limiting the number of individuals in their businesses, to facilitate and ensure social distancing of at least six feet."

As of March 24, there were no executive orders from the governor that would restrict commerce beyond dine-in establishments, entertainment, gyms, social gatherings, and the like.

As of March 22, the mayor's orders have only limited dining and entertainment.

1. Stay Home Stay Healthy Proclamation 20-05
Date: Issued March 23, 2020, effective March 25, 2020

Summary: People must stay home except for limited activities. Non-essential businesses must close, except for activities of minimum basic operations to protect inventory and property and facilitate remote work. Essential business and operations may continue, and they are defined in an appendix to the order. A variety of manufacturers qualify.

1. Executive Order No. 9-20
Date: Issued March 23, 2020

Summary: People must stay home except for limited activities. Non-essential businesses must close, except for activities of minimum basic operations to protect inventory and property and facilitate remote work. Essential business and operations may continue.

Details: Essential businesses and operations include those addressed in the CISA memo. Businesses with five or fewer employees and where the public is not invited may continue to operate if maintaining social distancing.

1. Emergency Order #12
Date: Issue March 24, 2020, effective March 25, 2020

Summary: People in Wisconsin shall stay at home except for limited activities. Non-essential businesses must cease, except minimum basic operations. Essential businesses and operations that remain open and minimum basic operations must employ social distancing and maximize remote work. The order includes list of essential businesses and operations and references the CISA memo. Violations are punishable by 30 days imprisonment or fine or both. This state order supersedes any local order in conflict with it.

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