By Kate Hickner

On Sunday, March 22, 2020, Dr. Amy Acton, Director of the Ohio Department of Health, issued a “Director’s Stay At Home Order” for the purpose of reducing the spread of COVID-19 coronavirus in the state of Ohio. The Department of Health also issued helpful Stay At Home Order Frequently Asked Questions to assist businesses and individuals to interpret the Order.

The Order is not a surprise and is consistent with the message that has been shared by Ohio Governor Mike DeWine and Department of Health throughout the past few weeks. It is also similar to orders issued by other states, including Louisiana, California, New York, Illinois, Connecticut, Oregon, New Jersey and Pennsylvania.

Ohio’s Order takes effect on Monday, March 23 at 11:59 p.m. EDT and will continue until April 6, 2020 at 11:59 p.m., unless it is extended before then.

Many of our clients have questions regarding how the Order will impact their own lives and business operations. Below is a broad overview of the Order, including four key take-aways.

Individuals Must Stay at Home (Exceptions for Essential Businesses and Operations)

First, the Order compels all Ohioans to stay at home or at their place of residence, subject to certain exceptions. To the extent individuals are using shared or outdoor spaces when outside their residence, they must at all times comply with the Social Distancing Requirements set forth in the Order, which include the following: (a) maintaining at least six-foot social distancing from other individuals, (b) washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, (c) covering coughs or sneezes (into the sleeve or elbow, not hands), (d) regularly cleaning high-touch surfaces and (e) not shaking hands.

Ohio residents may leave their homes or places of residence only for certain limited activities including, for example, the following:

  • For health and safety (e.g., seeking emergency services, obtaining medical supplies or medication, or visiting a health care professional).
  • For necessary supplies and services (e.g., groceries and food, household consumer products, supplies they need to work from home, automobile supplies (including dealers, parts, supplies, repair and maintenance), and products necessary to maintain the safety, sanitation and essential operation of residences).
  • For outdoor activity, providing that individuals comply with the Social Distancing Requirements described above (e.g., walking, hiking, running or biking). Note that public-access playgrounds are closed.
  • To take care of others (e.g., a family member, friend or pet in another household)
  • For certain types of work considered Essential Businesses and Operations (defined below) or to otherwise carry out activities specifically permitted in the Order, including Minimum Basic Operations (as defined below).

Although the Order is mandatory for the entire state of Ohio, please note that the Ohio National Guard will not be enforcing the Order and police will not stop residents who are traveling to work or to make necessary errands, for example, going to the pharmacy or grocery store.  However, the police may ask that people physically distance themselves or go home.

Essential Businesses and Operations Encouraged To Stay Open

Second, all Essential Businesses and Operations are encouraged to remain open during the duration of the Order to provide vital services as long as they comply with the Social Distancing Requirements described above. To this end, roads will not be closed. However, planes, public transportation and ride sharing should only be utilized when absolutely essential.

For purposes of the Order, the definition of “Essential Businesses and Operations” is very broad, providing that many Ohio businesses will be permitted to remain open. Because of the complexity and detail included in the Order regarding what does or does not constitute “Essential Businesses and Operations,” we encourage businesses and individuals to review the actual text of the Order and to consult with an attorney in the event that the Order’s application to a particular business is unclear.

As described more specifically in the Order, the term includes businesses that are within the Order’s definitions of “Healthcare and Public Health Operations,” “Human Services Operations,” “Essential Governmental Functions” and “Essential Infrastructure” as well as certain businesses that fall under the categories listed below. It’s important to note that manufacturers, suppliers and distributors that support the businesses listed below are considered Essential Businesses and Operations.

  • Stores that sell groceries and medicine
  • Food, beverage and licensed marijuana production and agriculture
  • Organizations that provide charitable and social services
  • Religious entities
  • Media
  • Gas stations and businesses needed for transportation
  • Financial and insurance institutions
  • Hardware and supply stores
  • Building and construction tradesmen and tradeswomen, and other trades
  • Mail, post, shipping, logistics, delivery and pick-up services
  • Educational institutions for purposes of facilitating distance learning, performing critical research or performing essential functions
  • Laundry services
  • Restaurants for consumption off-premises
  • Supplies to work from home
  • Manufacturers, suppliers and distributors that support businesses that sell, manufacture or supply other Essential Businesses and Operations
  • Transportation providers
  • Home-based care and residential facilities and shelters for adults, seniors, children and others
  • Professional services (e.g., legal, accounting, insurance and real estate services)
  • Manufacture, distribution and supply chain for critical products and industries
  • Critical labor union functions
  • Hotels and motels
  • Funeral services

The term also includes those workers identified in the Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, issued on March 19, 2020 by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA).

Non-Essential Businesses and Operations Must Cease

Third, all non-essential businesses and operations in the state of Ohio (i.e., businesses other than Essential Business and Operations (defined above)) are required to cease all activities within the state, provided, however, that they may continue to conduct Minimum Basic Operations. For this purpose, “Minimum Basic Operations” means the following minimum necessary activities to the extent consistent with the Social Distancing Requirements (described above):

  • Activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits or related functions
  • Activities to facilitate employees of the business being able to continue to work remotely from their residences

Further, businesses, including home-based businesses, may also continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home).

Business/Employer Checklist

Fourth, the Order requires businesses and employers to take the following actions (which are quoted verbatim because of their significance):

  • Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing
  • Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  • Ensure that your sick leave policies are up to date, flexible and non-punitive to allow sick employees to stay home to care for themselves, children or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough or shortness of breath).
  • Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
  • Reinforce key messages – stay home when sick, use cough and sneeze etiquette and practice hand hygiene – to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues and no-touch disposal receptacles for use by employees.
  • Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).

KJK is already preparing guidance memos for businesses describing which business functions are essential under the Order along with instructions to share with employees. If you need such memos drafted, we are happy to assist.

If you have questions or would like guidance regarding how the Order applies to your business or individual circumstances, please reach out to KJK Managing Partner Jon Pinney at jjp@kjk.com or 216.736.7260 or Partner Kate Hickner at keh@kjk.com or 216.736.7279.

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