Tag Archives: non-essential businesses

Can I go to Jail if My Business Violates a Stay-at-Home Order?

Contributed by Carlos Arévalo, May 18, 2020

How cities, counties and states are actively enforcing their COVID-19 orders is all over the map, but criminal and/or civil penalties are on the books in some areas.  For example, last Friday, May 15, the Illinois Governor directed the Illinois Department of Public Health (IDPH) to add an emergency rule called “Pandemic or Epidemic Respiratory Disease – Emergency Provisions.”  The emergency rule authorizes IDPH to “take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form.”  This specifically includes the power to seek penalties pursuant to Section 8.1 of the Illinois Public Health Act, including seeking convictions of Class A misdemeanors that can result in up to 364 days in jail time and/or fines of up to $2,500.

The IDPH rule specifically restricts and greatly limits the following businesses:

  1. Restaurant and other food serving establishments (except those located in airports and hospitals);
  2. Fitness health clubs and non-medical wellness establishments; and
  3. Barbershops, hair and nail salons, and other establishments that provide non-medical personal care services.

Other states have taken a variety of similar approaches.  For instance, in Indiana, businesses that violate state and local orders will receive a verbal warning first, a cease and desist letter second, a removal of their license or permit, and then finally, criminal charges, namely a Class B Misdemeanor resulting in a $1,000 fine and up to 180 days in jail.  A violation of Michigan’s stay-at-home order can result in a civil penalty of up to $1,000, as well as criminal fines and up to 90 days of jail time.  In Ohio, a violation can lead to a second-degree misdemeanor, a $750 fine and up to 90 days in jail.  While Wisconsin’s state-wide order has been struck down by the Wisconsin Supreme Court, local orders are still in effect in some cities and counties.  In some localities, a violation may result in 30 days in jail time and a $500 fine pursuant to the Wisconsin statute on Communicable Diseases.  Missouri’s state-wide order ended on May 4th, but some local cities and counties have extended its application to accommodate a phased reopening.  Pursuant to Missouri Revised Statutes, a violation of law or quarantine is a Class A misdemeanor punishable by 1-year in prison and a $2,000 fine.  Restaurants in Pennsylvania face suspension of their retail licenses and fines up to $10,000 per day.   Pursuant to Maryland’s amended order on May 6th, violations can result in $5,000 fines and jail for up to 1-year. Finally, in Texas, the initial COVID-19 order provided for fines up to $1,000 and 180 days in jail or both. However, in light of inconsistent and “overzealous” enforcement by some local agencies, particularly the arrest of a Dallas hair salon owner, Governor Greg Abbott announced he would ban cities from arresting individuals and would retroactively nullify any prosecutions.

Whether hard line enforcement will occur remains to be seen. In the interim, legal battle lines are being drawn. Any business that is not 100% certain of its rights and responsibilities in operating during the current crisis should consult with experienced legal counsel. The stakes are just too high.

Wisconsin Strikes Down Stay-at-Home Order: Non-essential Businesses Prepare to Reopen

Contributed by Peter Hansen, May 14, 2020

State of Wisconsin

The Wisconsin Supreme Court struck down Emergency Order 28, the Safer at Home Order, for failing to follow emergency rulemaking procedures in a lengthy 161-page opinion – effective immediately.  So, what does this mean for Wisconsin employers?

Local Orders Still Apply

Local officials may enact their own stay-at-home orders – and indeed, some already have.  Dane and Kenosha counties each issued orders adopting the majority of Emergency Order 28’s provisions, effective immediately and continuing to May 26, 2020.  Brown County issued a similar order in effect until May 20, 2020, the City of Racine issued an order in effect until May 26, 2020, and Milwaukee’s Mayor has taken the position that the city’s prior stay-at-home order in still in place.

More local orders will follow, so any employer planning on reopening or changing their practices as a result of the Wisconsin Supreme Court’s decision must verify that they are not violating any local order.

Preparing the Workplace

Non-essential businesses preparing to reopen can take a number of steps recommended by the Wisconsin Department of Health Services to prevent and reduce COVID-19 transmission among their workforce, including:

  • Whenever possible, maintain a distance of at least 6 feet from others
  • Require employees who have symptoms of respiratory illness to stay home and do not come to work until they are free of fever (>100.4°F) AND/OR respiratory symptoms (for example, cough, shortness of breath) for at least three days (72 hours) without the use of fever-reducing medicine AND ten days have passed since symptoms first appeared
  • Provide tissues and no-touch disposal receptacles for use by employees and customers
  • Encourage employees to wash their hands often with soap and water for at least 20 seconds or to use hand sanitizer with at least 60% alcohol if soap and water are not available
  • Routinely clean and disinfect frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails, and doorknobs
  • Advise employees to avoid touching their eyes, nose, and mouth with unwashed hands

Employers should also consider implementing the Centers for Disease Control and Prevention’s guidance for responding to COVID-19, including:

  • Conducting daily health checks
  • Conducting a hazard assessment of the workplace
  • Encouraging employees to wear cloth face coverings in the workplace, if appropriate
  • Implementing policies and practices for social distancing in the workplace
  • Improving the building ventilation system