20 March 2020

Executive Orders Enforcing Lock-Down and Closing All Non-Essential Businesses

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

In response to the COVID-19 pandemic, several state governors—including those in California, Pennsylvania, and New York—have issued or are considering issuing “shelter in place” executive orders which prohibit the operation of all businesses that are deemed non-essential, among other things.  While each organization must carefully review any executive order and analyze its operations before making any decision, below are some items to help guide that process.

Utilize Legal Counsel

Businesses and employers in affected states should have legal counsel determine whether their business is exempted under the applicable executive order and they would be well-served to obtain a written legal opinion from counsel determining whether they are exempt from a pertinent state shelter in place order in the event that state authorities attempt to enforce the order by attempting to shutter their operations.

Homeland Security Act

Although the particular language of each declaration varies state to state, federal policy guidance from the Department of Homeland Security identifies certain sectors as “critical infrastructure sectors” that should be kept open and running even in the event of a disaster or emergency declaration. Those sectors include the following industries: Chemical; Communications; Critical Manufacturing; Dams; Defense Industrial Base; Emergency Services; Energy; Financial Services; Food and Agriculture; Government Facilities; Healthcare and Public Health; Information Technology; Nuclear Reactors, Materials, and Waste; Transportation Systems; and Water and Wastewater Systems.

Letter To and For Employees

Certain states may take steps to enforce the shelter in place order against individuals and businesses. To ensure that employees of an exempt business may report to work, employees may need to be provided with a letter or other documentation explaining to law enforcement personnel that their employment relates to a company that is exempt from the shelter in place order for purposes of traveling to and from work.

Letter To Help Delivery

Certain states may also attempt to restrict entry of products or materials into their state across state lines. To ensure that products may travel across state lines, businesses may be advised to provide transportation personnel with a letter or documentation explaining that the product is being transported in connection with a business that is exempt from the shelter in place order.

Legal Challenges

Companies that are negatively affected by any regulation prohibiting interstate commerce may also seek to explore whether shelter in place orders may appropriately be applied to prohibit interstate commerce.