Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
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 April 2, 2020, Governor Brian Kemp signed an Executive Order requiring Georgia residents and visitors to shelter in place within their homes or places of residence, except to engage in limited essential activities, to perform work for Critical Infrastructure businesses or to perform work activities required for “Minimum Basic Operations” of non-critical infrastructure businesses. The Order expressly closes the public operations and in-person services of some businesses and professionals, and is in effect from Friday, April 3, 2020 at 6:00 p.m. until Monday, April 13, 2020 at 11:59 p.m.
Critical Takeaways for Employers
The restrictions imposed upon businesses and employers fall into three categories:
- Businesses providing Critical Infrastructure;
- Minimum Basic Operations for Businesses not providing Critical Infrastructure; and
- Businesses and Professionals Prohibited from Continuing Public or In-Person Operations.
Operation of “Critical Infrastructure” Businesses
The Order permits continued full operations only for Critical Infrastructure businesses. Individuals who are part of the workforce for Critical Infrastructure businesses may leave their homes to perform work, to engage in “necessary travel” to conduct or participate in such work, and to travel to and from their place of employment. The Order adopts the definition of “essential critical infrastructure workforce” in the U.S. Department of Homeland Security (DHS) guidance as revised on March 28, 2020. The Order also defines “Critical Infrastructure” to include businesses supplying essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The Order authorizes the Georgia Department of Economic Development to issue guidance to any business regarding its status as a Critical Infrastructure business.
The DHS guidance on the “essential critical infrastructure workforce” lists broad categories of critical infrastructure industries that have a special responsibility to continue operations for public health and safety as well as community well-being during the pandemic:
- Healthcare and public health;
- Law enforcement, public safety, and other first responders;
- Food and agriculture;
- Water and wastewater;
- Transportation and logistics;
- Public works and infrastructure support services;
- Communications and information technology, which includes news and media services;
- Other community or government-based operations and essential functions;
- Hazardous materials;
- Financial services;
- Defense industrial base;
- Commercial facilities;
- Residential/Shelter facilities and services; and
- Hygiene products and services.
The jobs, businesses and services within these broadly defined industries are described more specifically in the DHS guidance.
Minimum Basic Operations of Non-Critical Infrastructure Businesses
Georgia businesses, except for those identified as Critical Infrastructure businesses, may only conduct “Minimum Basic Operations,” and individuals working for these businesses may only leave home to perform activities to support the following Minimum Basic Operations:
- The minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization by providing services, managing inventory, ensuring security, processing payroll and employee benefits, or performing related functions. Such minimum necessary activities include remaining open to the public subject to the restrictions of this Order.
- The minimum necessary activities to facilitate employees or volunteers being able to work remotely from their residences, or members or patrons being able to participate remotely from their residences.
- Instances where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services.
Businesses and Professionals Required to Close to the Public and Cease In-Person Operations
The Order requires some businesses to close to the public and further orders any professionals engaged in these businesses to cease in-person operations, including the following:
- Fitness centers;
- Bowling alleys;
- Live performance venues;
- Operators of amusement rides;
- Body art studios;
- Beauty shops, salons, barber shops and schools;
- In-home barber shops and beauty salons;
- Hair designers;
- Licensed massage therapists; and
- “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.
The Order also requires all restaurants and private social clubs to cease dine-in services, but permits take-out, curbside pick-up, and delivery. Dine-in services at hospitals, healthcare facilities, nursing homes, and other long-term care facilities are permitted.The Order further prohibits businesses and county and municipal governments from allowing 10 or more individuals to gather if doing so would require people to stand or be seated within six feet of each other in a “single location.”1
Required Mitigation Measures in the Workplace
If a non-Critical Infrastructure business continues Minimum Basic Operations activities at its facilities, the business is required to implement 20 measures to mitigate the exposure and spread of COVID-19 among its workforce:
- Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
- Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
- Enhancing sanitation of the workplace as appropriate;
- Requiring hand-washing or sanitation by workers at appropriate places within the business location;
- Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
- Prohibiting gatherings of workers during working hours;
- Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
- Implementing teleworking for all possible workers;
- Implementing staggered shifts for all possible workers;
- Holding all meetings and conferences virtually, wherever possible;
- Delivering intangible services remotely wherever possible;
- Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
- Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
- Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
- Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;
- Enforcing social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
- For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia law;
- Increasing physical space between workers and customers;
- Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and
- Increasing physical space between workers’ worksites to at least six feet.
With respect to Critical Infrastructure employers that continue in-person operations, the Order requires these employers to implement measures to mitigate the exposure and spread of COVID-19 among its workforce, but does not specifically require all 20 of the mitigating measures set forth above. Critical Infrastructure employers should implement as many of these mitigating measures as are practicable for their employees and workplaces.
As a practical matter, employers should prepare a notice to employees that describes the mitigation measures that employees must undertake individually. This notice should be posted at the entrance to the workplace, in other prominent areas and in areas where notices are typically posted. The notice should direct employees to monitor themselves for COVID-19 symptoms and not to report to work if they are sick or experiencing these symptoms. The notice should encourage social distancing and proper hand hygiene, prohibit employees from gathering in the workplace, prohibit hand-shaking and other unnecessary person-to-person contact, and discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment. Emails to employees about the preventative measures would also be helpful.
Order Supersedes Inconsistent Restrictions by Georgia Counties and Cities
The Order supersedes all local ordinances and orders to the extent they conflict, and specifically provides that the “operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance.” Thus, concerns about inconsistencies that may have previously existed with the restrictions in the orders of various Georgia counties and municipalities are resolved. Georgia counties and cities have no ability to impose additional restrictions on individuals who are part of the workforce for “Critical Infrastructure” or individuals who are performing “Minimum Basic Operations” for non-critical infrastructure businesses.
Penalties and Enforcement
The Order authorizes the Georgia Department of Public Health to mandate the closure of a business for non-compliance until April 13, 2020 (the current term of the Order) and states that any person who violates the Order will be guilty of a misdemeanor, but provides that officials enforcing the Order should take reasonable steps to provide notice before issuing a citation or making an arrest. The Order also authorizes the Georgia National Guard and the Department of Public safety to assist in the enforcement of the Order.
1 “Single location” is defined as any space where the individuals gathered cannot maintain at least six feet distance between themselves and any other person. The requirement does not apply to “Critical Infrastructure” entities.