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It’s been over a week in Connecticut since many business have had to close their doors.  Let’s see where we are.  Effective Monday, March 23, 2020 at 8:00 PM, the State of Connecticut’s Executive Order 7H shut down many Connecticut businesses in an effort to combat the spread of COVID-19.  The State also issued guidance on who is exempted from the law.  Here is what we know. 

As of 8:00 pm, Monday March 23, 2020:

1. All businesses and not-for-profit entities need to utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely use.
2. Each employer shall reduce the in-person workforce at any of its work locations by 100%.
3. Any “essential” business or entity providing essential services or functions shall not be subject to the in-person restrictions. However, individuals working at these locations whose duties are not critical to an essential business function should work from home.

The Executive Order is in effect until April 22, 2020.

To assist employers in defining essential services, the Department of Economic and Community Development (the “DECD”) has issued comprehensive guidance. The text issued by DECD follows:

DECD GUIDANCE ON ESSENTIAL BUSINESSES

DECD’s guidance on essential businesses is as follows:

With respect to non-essential businesses and nonprofits, this guidance applies to each business location individually and is intended to assist businesses in determining whether they are an essential business and the steps they may take to request that designation.  

The guidelines set forth here apply to places of business. Non-essential businesses may continue activities that are conducted off-site (e.g. a customer’s home) and/or by telecommuting or working from home. 

Pursuant to the Governor’s Executive Order 7J, issued on March 22, 2020, 1) non-essential retailers may be staffed on-site, provided that they may only offer remote ordering (e.g. phone, internet, mail, dropbox) and curb-side pick-up or delivery and 2) non-essential businesses and nonprofits to allow staff or third parties on site to the minimum extent necessary to provide security, maintenance and receipt of mail and packages. This includes, but is not limited to, auto, boat, bicycle, recreational vehicle, and all other vehicle sales, if conducted remotely. 

To the extent possible, employees of Essential Businesses whose duties are not critical to an Essential Business function described below should telecommute or utilize any work from home procedures available to them.  

Critical Infrastructure Sectors

Essential workers in the 16 critical infrastructure sectors defined by the federal Department of Homeland Security.  You can read more on the Department of Homeland Security’s site here.

• Healthcare/Public Health
• Emergency Services – Law Enforcement, Public Safety, First Responders
• Food and Agriculture
• Nuclear Reactors, Materials & Waste
• Energy
• Water and Wastewater
• Transportation and Logistics
• Other Community-Based Government Operations and Essential Functions
• Critical Manufacturing
• Financial Services
• Chemical
• Defense Industrial Base
• Communications
• Information Technology
• Dams
• Commercial Facilities

Healthcare and related operations

• biotechnology therapies
• consumer health products and services
• doctor and dentist offices
• elder care, including adult day care
• health care plans and health care data
• home health care workers or aides
• hospitals
• manufacturing, distributing, warehousing, and supplying of pharmaceuticals, including research and development
• medical marijuana dispensaries and producers
• medical supplies and equipment providers, including devices, diagnostics, services, and any other healthcare related supplies or services
• medical wholesale and distribution
• nursing homes, or residential health care facilities or congregate care facilities
• pharmacies
• physical therapy and chiropractic offices
• research and laboratory services, including testing and treatment of COVID-19
• veterinary and animal health services
• walk-in-care facilities

Infrastructure

• airports/airlines
• commercial trucking
• dam maintenance and support
• education-related functions at the primary, secondary or higher education level to provide support for students, including distribution of meal or faculty conducting e-learning
• hotels and other places of accommodation
• water and wastewater operations, systems and businesses
• telecommunications and data centers
• transportation infrastructure including bus, rail, for-hire vehicles and vehicle rentals, and garages
• utilities including power generation, fuel supply, and transmission

Manufacturing

All manufacturing and corresponding supply chains, including aerospace, agriculture and related support businesses

Retail

• appliances, electronics, computers and telecom equipment
• big-box stores or wholesale clubs, provided they also sell groceries, consumer health products, or operate a pharmacy
• convenience stores
• gas stations
• grocery stores including all food and beverage retailers
• guns and ammunition
• hardware, paint, and building material stores, including home appliance sales/repair
• liquor/package stores and manufacturer permittees
• pharmacies
• pet and pet supply stores

Food and Agriculture

• farms and farmer’s markets
• food manufacturing, processing, storage, and distribution facilities
• nurseries, garden centers and agriculture supply stores
• restaurants/bars (provided compliance with all applicable executive orders is maintained)

Services

• accounting and payroll services
• animal shelters or animal care or management, including boarding, grooming, pet walking and pet sitting 
• auto supply, repair, towing, and service, including roadside assistance
• bicycle repair and service
• building cleaning and maintenance
• child care services
• critical operations support for financial institutions
• financial advisors
• financial institutions, including banks, credit unions, and check cashing services
• funeral homes, crematoriums, and cemeteries
• insurance companies
• laundromats/dry cleaning
• legal and accounting services
• mail and shipping services
• marinas and marine repair and service
• news and media
• real estate transactions and related services, including residential leasing and renting
• religious services (subject to Executive Order 7D limiting gatherings to 50 people)
• storage for Essential Businesses
• trash and recycling collection, hauling, and processing
• warehouse/distribution, shipping, and fulfillment

Providers of Basic Necessities to Disadvantaged Populations

• food banks
• homeless shelters and congregate care facilities
• human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support social service agencies

Construction

• all skilled trades such as electricians, HVAC, and plumbers 
• general construction, both commercial and residential
• other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
• planning, engineering, design, bridge inspection, and other construction support activities

Safety and Sanitation Services

• building cleaners or janitors
• building code enforcement
• disinfection
• doormen
• emergency management and response
• fire prevention and response
• general maintenance whether employed by the entity directly or a vendor
• home-related services, including real estate transactions, closings, appraisals, and moving services
• landscaping services
• law enforcement
• outdoor maintenance, including pool service
• pest control services
• security and maintenance, including steps reasonably necessary to secure and maintain non-essential businesses
• state marshals

Essential Service Vendors

Vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including:

• billboard leasing and maintenance
• child care services
• essential government services
• government owned or leased buildings
• information technology and information security
• logistics
• technology support

Defense

• defense and national security-related business and operations supporting the U.S. Government or a contractor to the US government

Requesting Designation

If the function of your business is not listed above, but you believe that it is essential or it is an entity providing essential services or functions, you may request designation as an Essential Business.

Requests by businesses to be designated an essential function as described above, should ONLY be made if they are NOT covered by the guidance.

Restrictions on requesting designation as an Essential Business:

Any business that only has a single occupant/employee (e.g. attendant) is deemed exempt and need not submit a request to be designated as an Essential Business.

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Despite the length of this list, many employers are asking if they are covered.   In many cases we need to make an educated guess, but there is an alternative.  As mentioned at the end of the legislation, like New York, Connecticut has created a service which allows employers to ask the State for guidance on the essential nature of their business (see link above).  Additionally, the Governor has already issued a clarifying order for retailers (Executive Order 7J), which allows non-essential retailers to take orders remotely and sell products for curbside pickup and delivery, and allows other nonessential businesses to allow the minimum staff necessary on site to handle security, maintenance, mail, and other essential services

To help businesses in Connecticut navigate the COVID-19 crisis, DECD has established the COVID-19 Business Emergency Response Unit reachable at (860) 500-2333.

If you need help deciphering the definition of essential, need assistance in asking the State for guidance, or any other employment related issues pertaining to COVID-19 or otherwise, we stand ready to help. 

The subject matter discussed in this post can be very technical.  It is an evolving area of law and very fact specific.  Our goal here is to simply alert you to some of the key issues involved.  We urge you to seek competent legal counsel before applying these ideas to your specific situation.  Brody and Associates stands ready to discuss your particular needs.