Executive Order Requires Non-Essential Businesses and Operations to Cease Activity

By: Jeffrey L. Lund, J.D.

On March 23, 2020, Governor Eric Holcomb issued a Stay-At-Home Executive Order (the “Order”), which shall be effective at 11:59 p.m. on March 24, 2020, and remain in effect until 11:59 p.m. on April 6, 2020, unless rescinded, modified, or extended. The Order requires all nonessential businesses and operations to cease all activities except for “minimum basic operations” and operations performed by employees working from home. When conducting minimum basic operations, employees must comply with social distancing requirements to the extent possible. The Order defines two categories of minimum basic operations:

  1. The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of its physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions, and
  2. The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

While nonessential businesses are prohibited from operating, the Order encourages all essential businesses and operations to remain open, provided they observe certain social distancing requirements (detailed further below). Below is a general list of what qualifies as an essential businesses and operations:

Essential Businesses and Operations

  • Healthcare and public health operations
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Human services operations
  • Educational institutions for purposes of facilitating distance learning, performing critical research, provided that social distancing is maintained
  • Essential infrastructure
  • Laundry services
  • Essential governmental functions
  • Restaurants for consumption off-premises (Addressed further in Executive Orders 20-10 and 20-04)
  • Businesses that sell, manufacture, or supply products needed for people to work from home
  • Stores selling groceries and medicine, including their supply chain and administrative support operations
  • Businesses that sell or manufacture supplies for essential businesses and operations
  • Food, beverage, and agricultural operations
  • Transportation services
  • Charitable and Social service organizations when providing necessities of life
  • Home-based care and services, including nannies
  • Religious entities, provided they adhere to the CDC’s guidance on social gatherings
  • Residential facilities and shelters
  • Media operations including newspapers, television, radio, etc.
  • Professional services such as legal, insurance, accounting, and real estate services.
  • Gas stations and businesses needed for transportation
  • Manufacture, distribution, and supply chain for critical products and industries
  • Financial and insurance institutions
  • Critical labor union functions such as the administration of health and welfare funds
  • Hardware and supply stores that sell electrical, plumbing, and heating materials
  • Hotels and motels
  • Critical trades which are necessary to maintain safety, sanitation, and habitability of residences.
  • Funeral services

 

On March 23, 2020, Governor Holcomb also announced the opening of a Critical Industries Hotline to provide guidance to Indiana businesses regarding the Order. Employers can contact the Hotline with questions regarding their status as “essential” or “nonessential” businesses by calling 877-820-0890, or by emailing [email protected].

Regardless of an employer’s status as essential or nonessential, all Indiana businesses must observe the social distancing requirements as detailed in the Order, which are defined to include the following:

  1. Maintaining at least six-feet of space between individuals,
  2. Washing hands for at least 20 seconds with soap as frequently as possible;
  3. Covering coughs and sneezes (not with hands);
  4. Regularly cleaning commonly touched surfaces;
  5. Not shaking hands;
  6. Providing signage or other visual indicator of the six-feet requirement for employees and customers in line;
  7. Having hand sanitizer and other sanitizing products readily available to employees and customers;
  8. Implementing separate operating hours for elderly and vulnerable customers; and
  9. Providing for online and remote access.

Employers should verify their status as essential or nonessential businesses and apprise themselves of the full requirements of the Order. The full document can be found here: Stay at Home Executive Order. A checklist from the Order has also been attached hereto for reference. Other Executive Orders affecting Indiana businesses including orders concerning the carryout consumption of alcohol, the prohibition of in-person dining, the prohibition of eviction and foreclosure and more issues can be found here: https://www.in.gov/gov/2384.htm.

If you have questions about this article, contact a member of Yoder Ainlay Ulmer & Buckingham’s employment law practice group at (574) 533-1171.

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance your interpretation of these materials is appropriate to your particular situation.

©  Yoder Ainlay Ulmer & Buckingham, LLP [March 23, 2020]

 

COVID-19 Information and Checklist for All Businesses/Employers

All businesses and employers, whether or not they are deemed to be essential under this Order, are hereby ordered to take the following actions:

  1. Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
  2. Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider's note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  3. Ensure that your sick leave policies are up to date, flexible, and non-punitive in order to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day in order to check if they have any COVID-19 type symptoms (fever, cough, or shortness of breath).
  4. Separate Employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
  5. Reinforce key messages to all employees (including stay home when sick, use cough and sneeze etiquette, and practice hand hygiene), and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
  6. Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
  7. Be prepared to change business practices, if needed, in order to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).