NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

On the heels of a limited “shelter in place” order by Georgia Governor Brian Kemp, Atlanta Mayor Keisha Lance Bottoms issued a Stay at Home Order requiring all individuals living in the City of Atlanta to stay at home, except to engage in limited activities, to work for Essential Businesses or to engage in other permitted work activities.  The City’s Order also provides that all non-essential businesses must cease operations at physical locations within the City, except for “Minimum Basic Operations.”  Businesses may continue operations consisting exclusively of employees or contractors performing activities at their own residences.  The City’s Order prohibits all other public and private gatherings outside a single household or living unit. 

The City of Atlanta’s Order went into effect at midnight on March 24, 2020 and extends until April 7, 2020.  The Georgia Order, which went into effect at noon on March 24 and ends April 6, 2020, requires only individuals who are infected with COVID-19 or who are in other high-risk categories to shelter in place.  The Georgia Order limits gatherings of more than 10 people and closes bars in Georgia for 14 days. 

Critical Takeaways for Employers Regarding the City of Atlanta Order

Covered businesses under the City’s Order include all entities not specifically exempted as “Essential Businesses.”  The City’s Order specifically allows individuals to leave their homes to perform any work for Essential Businesses or to provide any services necessary to the operations and maintenance of “Essential Infrastructure” or “Essential Government Functions.”

All Georgia businesses may continue activities defined as “Minimum Basic Operations,” which include:

• Activities that are necessary to maintain the value of the business’s inventory;
• Ensuring security;
• Processing payroll and employee benefits, or performing related functions; and
• Facilitating employees of the business to be able to work remotely from their residences.

If a non-essential business continues “minimum basic operations” activities at its facilities, the business must ensure compliance with the CDC’s social distancing requirements and ensure that its employees maintain a six-foot distance from each other and from members of the public.

Essential Businesses Exempt from City of Atlanta Order

The City’s Order permits the continued operation of “Essential Businesses,” which include:

• Healthcare Operations and Essential Infrastructure;
• Grocery stores, farmers' markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of food and any other household consumer products (such as cleaning and personal care products). This category includes stores that sell groceries, other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences;
• Food cultivation, including farming, livestock, and fishing;
• Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;
• Newspaper, television, radio, and other media services;
• Gas stations and auto-supply, auto-repair, and related facilities;
• Banks and related financial institutions;
• Hardware stores;
• Lodging businesses (e.g., hotels, motels, conference centers);
• Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses;
• Businesses providing mailing and shipping services, including post office boxes;
• Educational institutions – including public and private K-12 schools, colleges, and universities – for purposes of facilitating distance learning or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible;
• Laundromats, dry cleaners, and laundry service providers;
• Restaurants and other facilities that prepare and serve foods, but only for delivery or carry out. Cafeterias in hospitals, nursing homes, or similar facilities shall not be subject to these restrictions;
• Businesses that supply products needed for people to work from home;
• Businesses that supply other Essential Businesses with the support or supplies necessary to operate;
• Residential facilities and shelters for seniors, adults, and children;
• Professional services, such as legal or accounting services;
• Childcare facilities; and
• Utility, water, sewer, gas, electrical, oil refining, roads and highways, railroads, public transportation, taxi/rideshare, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).

“Healthcare Operations” are more specifically defined to include hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnological companies, healthcare suppliers, home healthcare providers, mental health providers, and other ancillary healthcare services.  Veterinary clinics and all health services provided to animals are also included in “Healthcare Operations.”  Fitness center, gyms, and similar facilities specifically are not included and thus are not classified as essential.

“Essential Infrastructure” is further defined to be any work necessary to the operations and maintenance of public works construction, airport operations, utilities, roads and highways, railroads, public transportation, taxi/rideshare services, and solid waste collection and removal.  Those operations are exempt from the City’s Order and may report to work.  The City of Atlanta’s Order does not expressly refer to or adopt the broader list of infrastructure workers contained in the Department of Homeland Security’s “Memorandum on Identification of Essential Critical Infrastructure Workers During Covid-19 Response.”

“Essential Governmental Functions” include all services needed to ensure the continuing operation of the government agencies that provide for the health, safety and welfare of the public. All first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement personnel, and others working for or to support essential governmental functions are exempt from stay at home restrictions.

Critical Takeaways for Employer’s Regarding Georgia’s Shelter-in-Place Order

Under the Georgia Order, only individuals who have “serious underlying conditions that are likely to cause the increased spread of COVID-19” are required to shelter-in-place. These individuals include:

• Persons with known or suspected COVID-19 infection.
• Persons who live in a nursing home or long-term care facility;
• Persons who have chronic lung disease; and
• Persons who are currently undergoing cancer treatment.

The only businesses that are required to cease operation under the Georgia Order are “bars,” as defined by statute as businesses deriving 75% or more of their gross revenues from the sale of alcoholic beverages for consumption on the premises.  All other businesses may remain open, but they may not allow more than ten individuals to gather if doing so would require people to stand or be seated within six feet of each other in any gathering.¹

Other Orders Mandating Business Closures and Other Restrictions in Georgia

Currently, multiple counties in Georgia have imposed orders closing or otherwise restricting the normal operation of businesses. These counties include:

• Athens-Clarke County;
• Chatham County;
• Dougherty County;
• DeKalb County; and
• Lowndes county.

In addition to Atlanta, several other cities in Georgia have also issued orders closing or restricting businesses. These cities include:

• Brookhaven;
• Dunwoody;
• Perry;
• Rome;
• Savannah;
• Smyrna;
• Tifton;
• Tucker; and
• Winder.

The orders issued by the counties and cities listed above generally include the same limitations and are no more restrictive than the City of Atlanta Order.  The City of Winder has imposed a nighttime curfew from 9:00 PM to 5:00 AM.  During the curfew period, individuals are required to remain in their homes unless they are providing designated services such as public safety, medical services, military services, or emergency utility repairs.  Other exceptions to the curfew include individuals in need of medical attention; individuals traveling to and from their jobs with appropriate identification or traveling to medical facilities; individuals delivering food, medical supplies, or fuel; news media employees; and individuals engaged in other “essential functions.”

Enforcement Plans Remain Unclear

The City of Atlanta Order does not indicate how the restrictions will be enforced or any penalties for non-compliance.  The Georgia Order authorizes the Georgia Department of Public Health to mandate the closure of a business for non-compliance until April 6, 2020 (the current term of the State’s Order) and authorizes the Department of Public safety to assist in the enforcement of the Order.