An Employer’s Guide to State Closure Orders
*Wiley continues to closely monitor the COVID-19 crisis and will update this list as the situation unfolds. This alert was last updated on April 6, 2020.
As coronavirus (COVID-19) cases continue to be on the rise in the United States, state governors are issuing unprecedented orders closing down non-essential businesses. These orders are not uniform in many ways, most notably in how essential and non-essential businesses are defined, but generally they each require that all businesses that are considered non-essential cease all in-person operations and that those businesses that are essential take measures to minimize the number of employees coming to work. As more and more states issue restrictions, employers need to stay appraised of whether they are essential or non-essential in each state in which they operate and need to weigh their options for going forward.
In addition to the guidance we previously provided on what options may be available to business leaders, employers should also consider whether they are eligible for a waiver to keep their businesses open and whether they may be able to obtain some relief under the "Phase 3" stimulus package. Additionally, some employees who are continuing to commute to essential businesses may need documentation in some states in order to commute without being cited for a violation of these orders.
Employers also will need to work through the many open questions associated with these state executive orders, including questions of how and to what extent essential businesses are able to force employees to come to work, whether there are any liabilities associated with employees working during this time, whether non-essential businesses must pay emergency sick leave to their employees pursuant to the Families First Coronavirus Response Act, and how to properly plan and execute difficult employment decisions in a way that minimizes liabilities in the future.
The following is a list of the jurisdictions which have ordered all non-essential businesses to close or to shut down, entirely or in part, in-office functions as of the issuance of this alert:
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- Rhode Island
- West Virginia
Wiley is closely monitoring these state level measures and how they will impact employers as businesses look to the months ahead. We encourage employers to consult with counsel regarding their options, including whether to apply for a waiver or how decisions regarding their workforce will impact their businesses into the future.