03-26-2020 | Blogs, Business & Corporate Law, BW News, Employment & Labor, Labor Practices

Determining Whether Your Business Qualifies as Essential

By: Brennan Block


 

More and more state and local governments are issuing “stay at home” orders that require all non-essential businesses to cease operations and send employees home. We’ve received many client questions regarding the ramifications of these orders, the definition of an “essential business,” and the registration requirements for essential businesses.

Currently, Iowa does not have a shelter in place order in effect. Additionally, there’s not any Iowa authority regarding what types of businesses will qualify as “essential” in the event of a shelter in place (or similar) order. Therefore, unsurprisingly, there are no registration/certification requirements of essential businesses in Iowa at this time. All we can do is look to other states for guidance to prepare ourselves in the event of a stay at home order here in Iowa.   

Generally, states with shelter in place orders are not requiring that businesses register as “essential” businesses. Instead, businesses are requested to review the list of “essential businesses” designated by the state or locality (which lists, more often than not, refer to the Department of Homeland Security’s guidance here: https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce) and make a self-determination as to whether or not the respective business qualifies as “essential.” Notably, DHS’s guidance does not provide any registration/certification recommendations.  

In some states, where a business does not clearly qualify as an “essential business” under the stay at home order, there have been procedures created for such business to request a designation as an essential business. New York and Connecticut are two states that have implemented this procedure. An example of New York’s request for designation can be found here: https://esd.ny.gov/content/request-designation-essential-business-purposes-executive-order-2026.

When it comes to certifying or documenting the “essential” self-determination of a business, we have not seen many requirements for doing so. The state with perhaps the most strict rules at this point in time is Michigan, which requires that employers who are essential businesses “designate in writing” to employees, whether by electronic message, website posting, or otherwise, their designation as workers essential to the continued operation of an essential business. Notably, however, this written designation requirement is suspended (designations may be made orally) until March 31, 2020. The order itself can be found here: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626–,00.html.

In any event, it seems that the best way for businesses to go about making and documenting their “essential” self-determination in the event of a stay at home order is to: (1) analyze the applicable stay at home order and its definition of an “essential business;” (2) determine whether the business fits within the definition and, if so,  outline the rationale for this determination; and, finally, (3) communicate the self-determination to employees of the essential business. The communication to the employees in step 3 would also be a good opportunity for the business to emphasize employee compliance with the CDC’s recommendations for COVID-19 control/prevention at the worksite, including avoidance of large gatherings and social distancing (approximately 6 feet or 2 meters) from others when possible (e.g., breakrooms and cafeterias).

While the authority on these topics is limited and varies from state to state, we can tell you what we know so far and are here to help you work through your particular situation. We’ll be continuously updating ourselves on these topics as the situation continues to develop. If you would like our assistance with making a self-determination whether your business does qualify (or is likely to qualify) as an essential business, please reach out to your BrownWinick attorney or submit a message through our Contact Us form. For updates on COVID-19 and new guidance provided by BrownWinick attorneys, please visit our COVID-19 Resource Page.