Tag Archives: Stay at Home Order

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

Missouri Announces Plan to Gradually Reopen Economic and Social Activity

Contributed by Brian Wacker, April 28, 2020

On Monday, April 27, 2020, Missouri Governor Mike Parson announced “Phase One” of the “Show Me Strong Recovery Plan” to gradually reopen the economic and social activity in the state, beginning on May 4, 2020.  As part of Phase One, the Missouri Department of Health and Senior Services issued an Order relaxing restrictions on businesses and social activities. 

The relaxed restrictions are:

  • Retail sales businesses can re-open, so long as the number of individuals in the retail location is limited as follows:
    • if the location is less than 10,000 square feet, then 25% or less of the business’ fire or building code occupancy;
    • if the location has more than 10,000 square feet, then 10% or less of the business’ fire or building code occupancy
  • All schools remain closed for the 2019-2020 school year; however, staff and students may reenter school buildings to work, retrieve personal belongings, and return school property.
    • Summer school is permitted to proceed under guidelines set forth by the Missouri Department of Elementary & Secondary Education.
    • Daycares, child care and schools are permitted to provide child care in accordance with CDC guidelines.
  • Restaurants can reopen for dining-in services if social distancing measures are taken, including spacing of six feet between tables, lack of communal seating areas and a prohibition on seating more than ten people at a single table. 
  • It remains prohibited for individuals to visit nursing homes, long-term care facilities, retirement homes or other assisted living homes unless they are there “to provide critical assistance or in end-of-life circumstances.”
  • With respect to all of these activities, individuals leaving their homes to engage in permitted activities, including when frequenting businesses and going to and from places of worship, must still “at all times practice social distancing” as prescribed by the CDC.

Businesses reopening pursuant to these guidelines are encouraged to take additional steps to mitigate the spread of COVID-19:

  • Implement basic infection prevention measures informed by industry best practices
  • Modify physical workspaces to maximize social distancing
  • Minimize business travel
  • Develop an infectious disease preparedness and response plan
  • Do not allow symptomatic people to physically return to work until cleared by a medical provider
  • Encourage telework whenever possible and feasible with business operations
  • Return to work in phases and/or split shifts
  • Limit access to common areas where personnel are likely to congregate and interact
  • Ensure that sick leave policies are flexible and consistent with public health guidance

However, businesses looking to open back up on May 4 should proceed with caution.  While this Order is statewide, it does not limit counties and municipalities from continuing to enact and enforce their own protective measures, including Stay-At-Home Orders already in place, with additional restrictions. This is especially true in St. Louis County and St. Louis City, which have recently extended their respective orders indefinitely.

This blog continues to monitor developments in Missouri, St. Louis County and St. Louis City. Check back for updates as additional guidance from the state and local authorities becomes available.

UPDATE – Does a “Shelter-in-Place” or “Stay-at-Home” Order Trigger Paid Sick Leave under the FFCRA?

Contributed by Jeff Risch and Peter Hansen, April 6, 2020

22175873 – a 3d human character a question mark

As we now know, the Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave — under the Emergency Paid Sick Leave Act (EPSLA) — for specified reasons related to COVID-19 starting April 1. These reasons include: because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.

Many states and local governments have now mandated shelter-in-place (SIP) or stay-at-home orders.

The question facing many employers is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The U.S. Department of Labor (DOL) published its FFCRA rules on April 6, 2020 providing a little more guidance on this issue. According to the DOL’s regulations: 

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.

In light of this authority, employers who continue to operate and have work available at their place of business need to carefully review the unique SIP order(s) impacting their operations and determine if there is any information advising categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine and thereby causing those categories of employees to be unable to work even though work is available.  Of course, if an employee is able and allowed to work from home, then the employee would not be eligible for paid sick leave under the EPSLA. 

Again, it is critical for employers to evaluate the SIP order(s) covering their geographic footprint(s). Using Illinois as an example, the current stay-at-home order states that, “People at high risk of severe illness from COVID-19, including elderly people and those who are sick, are urged to stay in their residence to the extent possible except as necessary to seek medical care.”  However, questions abound. Does Governor Pritzker “urging” certain residents to stay at home render them eligible for EPSLA benefits if they cannot work from home? Notably, St. Louis County (MO) issued its own stay-at-home order with language similar to Illinois, and released an FAQ providing, in relevant part: It is highly recommended that high-risk populations (like persons over 60 years old or persons with underlying health conditions) should stay at home. 

Bottom Line:  An employee should not be eligible for the paid sick leave under the EPSLA if his/her assigned worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they continue to operate, any employee who cannot work from home may be eligible for paid sick leave depending on the applicable SIP order in place expressly advising the employee to stay home due to specific instructions/restrictions. 

Missouri Issues State-wide “Stay At Home” Order

Contributed by Brian Wacker, April 4, 2020          

black and white gavel

This blog has previously reported on Governor Parson’s resistance to issue a state-wide “Stay At Home” Order in Missouri in response to the COVID-19 pandemic.  He had previously issued a “Social Distancing” Order, effective through April 6, 2020, with individual counties and municipalities left to issue their own Stay At Home Orders to fill the void.

Now that has changed. 

On Friday evening, the Governor announced that the State’s Department of Health & Human Services had issued a state-wide Order mandating that all Missourians “shall avoid leaving their homes or places of residence unless necessary.”  The details of the 3-page Order, which is effective beginning on April 6, 2020 and remains in effect through Friday, April 24, 2020, are as follows:

Individuals Are Ordered To Stay At Home

Missouri residents are to avoid leaving home, except to work, access food, prescriptions, health care or other necessities or to engage in outdoor activity.  And if they must leave for such purposes, they are required practice “social distancing.”  The Order does also carve out individuals leaving home to go to and from their place of worship, but again provided that “social distancing” guidelines are adhered to. 

Individuals are specifically prohibited from visiting nursing homes, long-term facilities and retirement homes unless to provide critical assistance. Finally, individuals are to avoid social gatherings of more than ten people. Restrictions on eating and drinking at bars, restaurants and food courts remain, but those businesses can remain open for drive-thru, pickup or delivery. 

If individuals do leave home subject to the above restrictions, the dictates of the prior “Social Distancing” Order remain in effect. 

Businesses Can Continue To Operate, Subject To Restrictions

Notably, the Order does not require any businesses to shutter. Instead, it places restrictions on businesses based on whether they employ individuals to perform “essential worker functions,” as defined by U.S. Department of Homeland Security’s guidance. 

This DHS Guidance includes functions of workers employed in the following fields:

  • healthcare/public health;
  • law enforcement, public safety and first responders;
  • food and agriculture;
  • energy;
  • water/wastewater;
  • transportation/logistics;
  • public works/infrastructure support;
  • communications & IT;
  • community and government-based operations;
  • hazardous materials;
  • financial services;
  • chemicals;
  • defense industrial base;
  • commercial facilities;
  • residence care and shelter services; and
  • hygiene products and services.

Given the wide range of fields above and the various workers defined under each by the DHS, Missouri businesses should study the DHS’ guidance in detail and seek legal guidance if there is any question as to whether employees qualify.

Businesses with employees performing “essential worker functions”

For businesses with employees meeting this DHS definition and which engage in retail sales to the public, they are required to limit the number of people in the retail locations as follows:

  • for retail locations with less than 10,000 square feet, 25% or less of the local fire or building code occupancy; or
  • for retail locations with more than 10,000 square feet, ten percent or less of the local fire or building code occupancy.

The Order exempts workers performing “essential worker functions” and whose job duties require contact with other people closer than 6 feet from “social distancing” requirements.  However, for any retail establishment remaining open, the Order requires “social distancing” to be practiced “including, but not limited to, when customers are standing in line.”

Businesses without employees performing “essential worker functions”

If a business does not have employees performing “essential worker functions,” then it is subject to the following restrictions:

  • gatherings of ten people in a single space at the same time are prohibited; and
  • individual workers are to maintain six feet between them, except when those workers are family members.

Businesses without employees performing “essential worker functions” can request a waiver from the gathering restrictions from the State’s Department of Economic Development.

Missouri Schools Remain Closed

The Order specifically declares that Missouri schools shall remain closed. 

However, subject to the individual and business restrictions above, daycares, childcare providers and schools can still provide child care for working families if they follow guidelines published by the Centers for Disease Control.

Local Orders Remain Effective

Finally, the Order is clear that while it is effective state-wide, local counties and municipalities may enact separate orders or regulations to help combat the COVID-19 Order, so long as they are not inconsistent with the Order.

Does a “Shelter in Place” or “Stay at Home Order” Trigger Paid Leave under the FFCRA?

Contributed by John Hayes, March 31, 2020

Clock and cash

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question facing many employers now is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The short answer is no.

On March 28, 2020 the U.S. Department of Labor (DOL) issued guidance to address, among other things, the FFCRA provisions related to paid sick leave or expanded medical leave, and whether employers are required to provide paid leave under its provisions if it is forced to close pursuant to SIP orders.  The specific questions that address the provisions for the closure of a worksite can be found on the DOL website and the relevant portions of the answers read as follows:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Bottom line: an employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they reopen and recall the affected employees to work, the recalled employees will be eligible for paid sick or family leave, if they meet the requirements under FFCRA. 

Missouri Mandates Social Distancing and St. Louis County and City Order “Stay At Home”

Contributed by Brian Wacker, March 23, 2020

Our blog previously reported on various state and local social distancing and shelter-in-place orders including California, Pennsylvania and Illinois.

The State of Missouri mandated social distancing and restrictions on social gatherings and closed all schools. The City of St. Louis and St. Louis County  have each issued separate stay at home orders for residents and businesses. Below are  brief summaries and links to the actual orders.

Missouri’s Social Distancing Order

Governor Parsons ordered “Social Distancing” across the entire Show-Me State and his order remains in effect through April 6, 2020. All Missouri residents are to avoid social gatherings of more than 10 people and “social gathering” is defined as any “planned or spontaneous event or convening” that brings more than 10 people “in a single space at the same time.” While all Missouri residents must avoid eating in and drinking at restaurants, bars and food courts; food drive-thru, curbside pickup and delivery remain unrestricted.

Visits to nursing homes, long-term care facilities and retirement homes are prohibited, and schools have been closed for the duration of the order.

Missouri residents may travel to grocery stores, pharmacy, gas stations, park and banks, etc. to secure supplies, however, necessary precautions to maintain social distancing to reduce the transmission of COVID-19, including a six feet of distance between all individuals that are not family members

St. Louis County Stay At Home Order

St. Louis County’s order remains in effect through April 22, 2020 and imposes a variety of “stay at home” restrictions on individuals and businesses.

Individuals:  Individuals are permitted to engage in defined “essential activities” including travel and actions related to health and safety of individuals and family members, shopping for groceries and household supplies, outdoor activities such as walking in the park (provided social distancing is observed), and going to and from work for an essential business. Otherwise, all individuals in St. Louis County have been ordered to remain in their residence. Other than members of the same household gathering in one place, all intentional “gatherings,” which is defined as “occasions when people come together as a group, whether formal or informal and whether public or private,” are prohibited. Any individuals performing essential activities are still required to comply with social distancing requirements. 

Businesses:  Only essential businesses are permitted to continue necessary activities, however, each must comply “to the maximum extent possible” with all social distancing requirements. There are at present 40 categories of essential businesses including healthcare operations, grocery stores, food production, media, hardware stores, hotels/motels, construction, laundry services, mailing/shipping services, trades like plumbers and electricians and professional services like attorneys and accountants.  In fact, if your business meets the essential business definition, the St. Louis County order “strongly encourages” you to remain open.   

If your business is not an essential business, the order requires you to “cease all activities” except for minimum basic operations (maintaining inventory, payroll processing) and facilitating employees to work remotely from home.  

Travel:   Travel is prohibited except for essential travel and travel necessary to engage in essential activities. Essential travel includes any travel related to essential activities and travel to care for elderly, minors or dependents, purchase goods from essential businesses, travel to and from a residence or place of work outside of the county.

Governmental Functions: Public parks and open outdoor recreation areas are to remain open, but playgrounds must be closed. All individuals directly supporting  law enforcement, emergency response, firefighting and emergency management personnel, court personnel and anyone else performing essential government functions are also exempt.

Enforcement: The order may be enforced by either the prosecuting attorney or the county counselor which was specifically delegated authority to “take appropriate actions” with businesses and individuals who fail to comply including “after offering notice and an opportunity to be heard that are reasonable under the circumstances” (not to be less than two hours’ notice).

St. Louis City “Stay At Home” Order

The Saint Louis City’s order remains in effect through April 22, 2020 and mandates all persons living in the city to remain at home, with four exceptions:

  • Performing “tasks essential” for “health and safety” including for the personal health and safety of family, household members and pets, obtaining medicine, medical supplies, supplies to work from home or visiting health professionals
  • Procuring or delivery of food, services or supplies for individuals, household members or others to maintain “safety and sanitation.”
  • Outdoor walking or exercise, provided you maintain a minimum 6 foot social distance from other individuals
  • Going to and from work, where allowed by the order.

Businesses are required to cease all activities other than to maintain the value of their inventory, provide security and process payroll, etc. Similar to St. Louis County’s order, the city’s order exempts a wide range of businesses, non-profits and institutions from closure and for other businesses and organizations the order significantly restricts or closes their operations.  For the complete text of the city’s order, please click here.