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With California, New York and Illinois ordering the closure of non-essential businesses and all non-essential workers to stay home – in an attempt to prevent the spread of the coronavirus – you might be asking yourself, “What is essential?”
Federal guidelines give state and local authorities leeway in what they consider essential businesses during an emergency. But in general, those industries identified as essential include grocery stores and food production, pharmacies, health care, utilities, shipping, banking, other governmental services, law enforcement and emergency personnel.
“The broad view is health care, obviously that is essential, sanitation (and) food is essential, and military is essential,” said Jerry Hathaway, a New York City attorney with Faegre Drinker Biddle & Reath.
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Since each state can designate what classified as essential, employers must be careful to follow regulations. Civil penalties could result from not following such executive orders.
“I don’t think a typical employer had in the playbook a pandemic on the scale of this,” said Hathaway, who has practiced labor law for over 40 years. “Everybody is in a state of shock, flux and they are dealing with it as best they can. And they are looking for guidance because we have a lot of laws about notices before you close and all of that. People are trying to do the right thing while being compliant with all our labor laws. It’s a challenge for all employers.”
State governors take the lead
A growing number of states have told residents to stay at home and work from home, unless their jobs are considered essential. And more could call for all non-essential businesses to close.
New York Gov. Andrew Cuomo on Friday mandated everyone not critical to their workplace to stay at home and all non-essential businesses to close by Sunday. Essential business include pharmacies and grocery stores, and other similar businesses. Also considered essential, according to the New York executive order:
telecommunication, airports and transportation infrastructure; services including trash collection, mail, and shipping services; and news media.
“Grocery stores need food. Pharmacies need drugs. Your internet needs to continue to work. Water has to turn on when you turn the faucet,” Cuomo said. “This is the most drastic action we can take.”
Cuomo said he had talked to the governors of neighboring states and that those states might consider similar action.
Also on Friday, Illinois Gov. J.B. Pritzker issued an executive order calling for the cease of non-essential business operations and residents to stay at home. Essential businesses and operations include charities, hardware and supply stores, cannabis production, and restaurants preparing food for off-site consumption.
“I fully recognize that in some cases I am choosing between saving people’s lives and saving their livelihoods,” Pritzker said in an announcement. “But ultimately, you can’t have a livelihood without a life. This will not last forever, but it’s what we must do to support the people on the front lines of this fight, and the people most vulnerable to its consequences.”
In California, Gov. Gavin Newsom on Thursday ordered residents to stay at home except businesses and workers needed to maintain critical operations such as emergency, food, defense and utilities. Newsom noted federal recommendations from the Department of Homeland Security and its Cybersecurity & Infrastructure Security Agency’s guidelines in California’s executive order.
Those recommendations, included in guidelines entitled “Identifying Official Infrastructure During COVID-19,” say that “different jurisdictions may come to different conclusions as to where essential worker accommodation is warranted based on the prevalence and density of certain infrastructure activity and assets in that area.”
“Regulators are clearly trying to leave as little to chance as possible,” said attorney David Coale of Lynn Pinker Cox & Hurst of Dallas.
Other industries considered essential, at the federal level, include health care, mail and shipping businesses, hardware stores and gas stations.
And while they are very detailed, he said, the guidelines “are difficult to enforce without mobilizing a massive law-enforcement effort.”
How should workers approach this with employers?
Workers should contact their employer if they haven’t been given direction, says Charles Jellinek, an employment law specialist and head of the employment practice at Bryan Cave Leighton Paisner in St. Louis, Missouri. “Contact your employer and say, ‘I read this and what does it mean for me and should I come in or not?’ That is the best approach,” he said.
Employers should “certainly be scrutinizing the executive orders,” Jellinek said. Employers in New York can also reference the Empire State Development corporation’s additional guidance on essential industries in Cuomo’s order. The document defines what manufacturing, infrastructure and retail operations are essential.
“There’s certainly some businesses in retail that can continue on, the obvious ones (are) grocery stores, pharmacies, convenience stores, gas stations, farmers’ markets,” Jellinek said. “But electronic goods, entertainment goods, luxury goods, clothing stores, I would be surprised if they were taking the position they should be open. Right now it’s just going to be what do people need for everyday living.”
Despite some workers at GameStop questioning whether stores should remain open, the company has considered itself an essential business. “While there are many businesses and organizations far more critical than ours, we believe we can have a positive impact during this very challenging time,” the company said in a statement to USA TODAY.
“The health and safety of our employees and customers is of utmost importance and we have and will continue to take extensive precautions consistent with CDC guidelines,” GameStop said. “We are complying with all state, county, city and local ordinances and we will continue to adjust to any future developments.”
Workers who think they are being forced to disobey orders to not work or not remain at home can read these executive orders, too.
“Given how much detail is in them, a worker should point to their specific language and then try to get someone from the health department on the phone to help drive home their point,” Coale said. “An employer might not grasp at first just how specific these orders are.”
Beyond that, an employee may think that even though the industry they work in is essential, their own status may be that of a non-essential worker who can work from home or not work at all. Most state orders define essential industries and essential positions within those industries, Coale says.
If a worker thinks they should be able to work at home, “Show the employer – in writing – the specific definitions and why they do not apply to him or her,” he said. “If that doesn’t work, start calling state health regulators until you can get someone on the phone or in an email to confirm that position.”
Employees cannot be fired for refusing to perform what is essentially an illegal act, Coale says. “These orders give employees leverage by saying they can sue and get punitive damages if they are terminated,” he said. “I recognize that is strong medicine but it is a tool that can be used in a tough negotiation or discussion.”
In the meantime, there may be certain industries locally that might not normally be considered essential, but certainly are now, such as Procter & Gamble’s largest Charmin factory, which Pennsylvania Gov. Tom Wolf has cleared to remain open 24 hours day day, seven days a week.
And states may take different actions. For example, Pennsylvania closed its state liquor stores earlier this week as part of Gov. Tom Wolf’s declaration of a disaster emergency. However, liquor stores can remain open in New Jersey until 8 p.m., despite a state of emergency declared last week by Gov. Phil Murphy. New York is also allowing its liquor stores to remain open, according to the New York State Liquor Store Association.
“What happens is people (in Pennsylvania) cross the river and go into New Jersey,” Hathaway said. “Well, you know, travel is bad. I think we should have a federal standard.”
Follow USA TODAY reporter Mike Snider on Twitter: @MikeSnider.
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