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.
On April 23, 2020, Governor Brian Kemp signed an Executive Order (Order) relaxing the statewide Shelter in Place Order issued on April 2, 2020, and providing additional guidance related to the performance of work for Critical Infrastructure businesses and non-Critical Infrastructure businesses, including businesses recently permitted to reopen. The Order also requires individuals at higher risk of severe illness to continue sheltering in place and some businesses to remain closed to the public. The Order is in effect from Friday May 1, 2020 at 12:00 a.m. until May 13, 2020 at 11:59 p.m.
Critical Takeaways for Employers
The restrictions imposed upon businesses and employers fall into three general categories:
- Businesses providing Critical Infrastructure;
- Businesses not providing Critical Infrastructure; and
- Businesses prohibited from conducting public or in-person operations.
Operation of “Critical Infrastructure” Businesses
The Order permits the continued full operations of Critical Infrastructure businesses. Individuals who are part of the workforce for Critical Infrastructure businesses, including those required to continue shelter in place, 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 April 17, 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 entities 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;
- Communication and information technology;
- Other community or government based operations and essential functions;
- Critical manufacturing;
- Hazardous materials;
- Financial services;
- Defense industrial base;
- Commercial facilities;
- Residential and 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.
Operation of Non-Critical Infrastructure Businesses
Under the Order, which is not effective until May 1, 2020 (unless otherwise noted below), the restriction that all non-critical infrastructure businesses may only conduct “Minimum Basic Operations” has been lifted. Thus, all Georgia businesses, except for those specifically required to remain closed, may reopen to the public. Importantly, the removal of the “Minimum Basic Operations” restriction does not mean non-critical infrastructure businesses may return to normal operations. As described in further detail below, all non-critical infrastructure businesses will be required to implement 21 mitigating measures and some will be required to implement additional mitigating measures based on their specific business.
Businesses Required to Close to the Public and Cease In-Person Operations
The Order requires some businesses to remain closed to the public with no in-person operations, including the following:
- Public swimming pools;
- Performance venues;
- Operators of amusement rides; 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 further prohibits businesses and county and municipal governments from allowing “gatherings” of persons.1
Required Mitigating Measures in the Workplace
If a non-Critical Infrastructure business continues or restarts operations at its facilities, the business is required to implement 21 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;
- If a retail business, posting a sign on the storefront stating that individuals who have a fever or other symptoms of COVID-19 shall not enter the store;
- Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
- Enhancing sanitation of the workplace as appropriate;
- Disinfecting common surfaces regularly;
- Requiring hand washing or sanitation by workers at appropriate places 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, whenever possible;
- Delivering intangible services remotely, whenever 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;
- 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;
- Open sales registers must be at least six feet apart;
- Point of sale equipment should be frequently cleaned and sanitized;
- Increasing physical space between workers and patrons; and
- 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.
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 to the maximum extent practicable, but does not specifically require all of the mitigating measures set forth above for non-Critical Infrastructure business. The Order recommends, however, that Critical Infrastructure and non-Critical Infrastructure businesses implement the following measures if practicable:
- Providing personal protective equipment (PPE) as available and appropriate to the function and location of the worker within the business location;
- Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and
- Increasing physical space between workers’ worksites to at least 6 feet.
As a practical matter, employers should prepare a notice to employees that describes the mitigation measures that employees must undertake. 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.
Additional Mitigating Measures Required for Specific Businesses
In addition to the mitigating measures included above, the Order provides that specific employers must implement additional mitigating measures tailored to their business and industry:
Effective as of April 23, 2020, any person, service, or entity delivering healthcare must adhere to the guidelines applicable to Critical Infrastructure businesses. In addition, specific healthcare providers must adhere to the following:
- Dental practices and clinics that continue in-person operation must adhere to the American Dental Association’s Interim Guidance for Minimizing Risk of COVID-19 Transmission and Interim Mask and Face Shield Guidelines.
- Licensed optometrists and their staff that continue in-person operation must adhere to the American Optometric Association’s Practice Reactivation Preparedness Guide and the Georgia Optometric Association's COVID-19 guidelines for practices.
- Licensed opticians and their staff that continue in-person operation during the effective dates of the Order must adhere to the Centers for Disease Control and Prevention’s Recommendations for Office Disinfection and Recommendations for Employers.
Ambulatory surgical centers that continue in-person operation during the effective dates of the Order must immediately implement additional mitigating measures, which may include but are not limited to:
- Screening patients before visits and monitoring their health prior to starting surgery as part of the pre-operative procedure;
- Requiring staff to self-monitor and screen for viral symptoms daily;
- Continuing to use PPE per the latest Centers for Disease Control and Prevention recommendations for all procedures;
- Following waiting room spacing guidelines, social distancing, face masking, and other recommended procedures for patients and visitors prior to entering the facility;
- Ensuring heightened disinfection to prevent and mitigate risk of spread;
- Ensuring patients have been medically cleared by their primary care physician where applicable;
- Balancing the needs of patient care with the risk of providing that care by prioritizing procedures for patients who have lower co-morbidities and surgical risks and procedures accompanied by lower risk with regard to airborne transmission and those with minimal risk of unintended hospital admissions;
- Performing regular rapid COVID-19 testing on providers and employees where feasible; and
- Performing COVID-19 testing on patients suspected to be experiencing COVID-19 and factoring the results of such testing into clinical decisions as to whether or not to proceed with procedures.
Restaurants and Dining Services
Effective Monday, April 27, 2020 at 12:00 a.m., all restaurants and dining rooms, including those at private social clubs, may resume dine-in services provided that no more than 10 patrons be allowed in the facility for every 500 square feet of public space and the following additional mitigating measures are implemented. Businesses must:
- Screen and evaluate workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
- Require workers who exhibit signs of illness to not report to work or to seek medical attention. Per existing U.S. Food and Drug Administration Food Code requirements, employees who are sick should remain home. If an employee becomes ill or presents signs of illness at work, the operator should identify the employee's condition during a pre-work screening and send the employee home. Restaurants shall create, maintain, and follow established policies regarding when employees who have become ill are permitted to return to work. An employee with known or suspected COVID-19 must follow Centers for Disease Control and Prevention guidelines to self-isolate for at least seven days after symptom onset and end isolation only after symptoms have improved and the employee has been fever-free and/or symptom-free for three consecutive days without medication before returning to work;
- Implement teleworking for all possible workers;
- Implement staggered shifts for all possible workers;
- Hold all meetings and conferences virtually, whenever possible;
- Train all employees on the importance and expectation of increased frequency of handwashing, the use of hand sanitizers with at least 60% alcohol, and provide clear instruction to avoid touching hands to face;
- Require all employees to wear face coverings at all times. Such coverings shall be cleaned or replaced daily;
- Discourage workers from using other workers' phones, desks, offices, or other work tools and equipment;
- Where possible, stagger workstations to avoid employees standing adjacent to one another or next to each other. Where six feet of separation is not possible, consider spacing options that include other mitigation efforts with increased frequency of cleaning and sanitizing surfaces;
- Establish occupancy limits to reduce contact in employee breakrooms;
- Prohibit handshaking and other unnecessary person-to-person contact in the workplace;
- Enforce social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
- Increase physical space between workers and patrons;
- Limit contact between wait staff and patrons;
- Discard all food items that are out of date;
- Discontinue use of salad bars and buffets;
- If providing a “grab and go” service, stock coolers to no more than minimum levels;
- Ensure the Food Safety Manager certification of the person in charge is up-to-date and provide food handler training to refresh employees;
- Thoroughly detail, clean, and sanitize the entire facility prior to resuming dine-in services and continue to do so regularly, focusing such cleaning and sanitation on high contact areas that would be touched by employees and patrons;
- Between diners, clean and sanitize table condiments, digital ordering devices, check presenters, self-service areas, tabletops and commonly touched areas, and discard single-use items;
- Use rolled silverware and eliminate table presets;
- Remove items from self-service drink, condiment, utensil, and tableware stations and have workers provide such items to patrons directly wherever practicable;
- The use of disposable paper menus is strongly encouraged, which should be discarded after each patron use. Otherwise, restaurants and dining rooms shall clean and sanitize reusable menus between each use by a patron. Non-touch menus are also acceptable for use.
- Clean and sanitize restrooms regularly, check restrooms based on the frequency of use, and ensure adequate supply of soap and paper towels at all times;
- Implement procedures to increase cleaning and sanitizing frequency of surfaces in the back-of-house. Avoid all food contact surfaces when using disinfectants;
- Check restrooms regularly and clean and sanitize based on frequency of use;
- Update floor plans for common dining areas, redesigning seating arrangements to ensure at least six feet of separation from seating to seating. Utilize physical barriers on booth seating when available;
- Limit party size at tables to no more than six;
- Where practical, consider a reservations-only business model or call-ahead seating;
- Remind third-party delivery drivers and any suppliers of your internal distancing requirements;
- Post signage on entrances that no one with a fever or symptoms of COVID-19 is permitted in the facility;
- Where practicable, physical barriers such as partitions or Plexiglas at registers should be used;
- Use technological solutions where possible to reduce person-to-person interaction: mobile ordering, mobile access to menus to plan in advance, text on arrival for seating, and contactless payment options;
- Provide hand sanitizer for use by patrons, including contactless hand sanitizing stations when available;
- Do not allow patrons to congregate in waiting areas or bar areas. Design a process to ensure patron separation while waiting to be seated that can include floor markings, outdoor distancing, or waiting in cars;
- If possible, use an exit from the facility separate from the entrance;
- Mark ingress/egress to and from restrooms to establish paths that mitigate proximity for patrons and staff;
- Where practicable, take-out and curbside pick-up services should be prioritized over dine-in services; and
- All restaurant or dining room playgrounds shall be closed.
These additional mitigating measures are not applicable to dine-in services in hospitals, healthcare facilities, nursing homes, or other long-term care facilities.
All childcare facilities that operate during the effective dates of the Order are required to implement the following additional remedial measures:
- Screen and evaluate all children prior to them entering the classroom for signs of illness or exhibiting a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
- Prohibit children from entering a classroom if they exhibit such symptoms;
- Prohibit unnecessary visitors;
- Provide meals in classrooms rather than in a congregated or communal setting;
- Restrict families' access to the front door of the facility or the door of their respective child's classroom only;
- Surfaces and objects that are frequently touched must be sanitized regularly, including, but not limited to, toys, games, and objects or surfaces not ordinarily cleaned daily;
- Toys and games that cannot be cleaned and sanitized should not be used;
- Toys that children have placed in their mouths or that are otherwise contaminated by body secretions or excretions should be set aside until they are cleaned by hand by a person wearing gloves;
- Machine-washable cloth toys should be used by one individual at a time or should not be used at all and should be laundered before being used by another child;
- Toys used by a group of children must be washed and sanitized before they may be used by children in a different group or classroom;
- Items that need to be cleaned should be set aside in a dish pan with soapy water or in a separate container marked for soiled toys;
- Only bedding (sheets, pillows, blankets, and sleeping bags) that can be washed may be used. Each child's bedding must be kept separate and, to the extent practicable, should be stored in individually labeled bins, cubbies, or bags. Cots and mats should be labeled for each child, and any bedding that touches a child's skin should be cleaned weekly or before use by any other child; and
- Workers should sign children in and out of the facility for families if a computer or keypad system inside the facility is used. If a tablet located outside the facility is used by families during drop-off and pick-up, the tablet must be disinfected after each use. If a paper sign-in system is used for sign-in, writing utensils should be sanitized after each use if families are permitted to sign children in themselves.
The Order also requires all childcare facilities to cease transporting children for any purpose other than transporting them between their place of residence and the childcare facility.
All retail businesses, including retail and wholesale grocery stores, that open to the public must implement the following additional mitigating measures:
- Limiting the number of patrons inside the store to 50% of fire capacity occupancy or eight patrons per 1,000 square feet;
- Encouraging patrons to use hand sanitizer upon entering;
- Encouraging non-cash payments when possible;
- Sanitizing entrance and exit doors at least three times per day;
- Encouraging workers to report any safety and health concerns to the employer;
- Installing protective screens or other mitigation measures where worker-patron interactions are likely; and
- Providing additional hand sanitizer within the business.
In addition to the requirements included above, retail and wholesale grocery stores must also implement to the maximum extent possible mitigating measures, including, but not limited to:
- Scheduling specific hours of operation for vulnerable populations to shop without other patrons;
- Reducing store hours to allow for increased cleaning and sanitation while the store is closed;
- Enacting policies and procedures to encourage social distancing for patrons and employees. Measures may include:
- Protective Plexiglass screens at service counters and at cash registers;
- Decals on the floor or aisles with messaging on social distancing;
- Signs throughout the store giving visuals on social distancing;
- Limited occupancy if the store becomes too crowded; and
- Use of one-way aisles.
- Providing PPE as available and appropriate to the function and location of the worker within the business location;
- Encouraging patrons to wear face coverings;
- Utilizing in-store messaging to educate and remind patrons and employees on recommended hygiene and social distancing;
- Discontinuing sampling or cooking stations;
- Closing self-serve salad bars and buffets;
- Adding additional staff to specifically oversee increased sanitation of grocery carts, and other high-touch areas such as door handles, point of sales equipment, conveyor belts, and other surfaces;
- Checking restrooms regularly, cleaning and sanitizing based on frequency of use, and ensuring adequate supply of soap and paper towels at all times;
- Allowing time for frequent hand washing for employees, including cashiers, that interact directly with patrons;
- Increasing or add hand sanitizing stations around stores for patrons and employees; and
- Procuring options with third-party cleaning companies to assist with the increased cleaning demands as needed.
Gyms and Fitness Centers
Effective as of April 24, 2020, all gyms and fitness centers are required to implement the following additional mitigating measures:
- Placing signage at any entrance to instruct patrons that they cannot enter if they have been diagnosed with COVID-19, had symptoms of COVID-19, or had contact with a person that has or is suspected to have COVID-19;
- Placing signage at any entrance and throughout the facility to instruct patrons of the enhanced sanitation procedures, social distancing requirements, and other instructions and limitations, as applicable, set forth below;
- Screening patrons at entrance. Patrons exhibiting a temperature greater than 100.4 degrees Fahrenheit, cough, shortness of breath, or other respiratory symptoms shall not be permitted to enter;
- Limiting occupancy to enforce social distancing requirements and to prohibit Gatherings;
- Utilizing contactless forms of patron check-in;
- Providing hand sanitizer stations for patrons and encouraging use;
- Providing sanitation wipes at or near each piece of equipment and requiring users to wipe down the equipment before and after use;
- Requiring workers to patrol patron areas to enforce the equipment wipe-down policy and conduct additional cleanings during times when equipment is not being used;
- Limiting use of cardio machines to every other machine to maintain acceptable social distancing between users;
- Enforcing social distancing and prohibiting congregating between non-cohabitating patrons. Patrons should be encouraged to conduct their workout and exit the facility without unnecessary delay;
- Halting the provision of group classes;
- Halting the provision of in-facility child care services;
- Closing the following facilities and equipment within a gym or fitness center: pools, basketball courts and other group sport areas, hot-tubs, saunas, steam rooms, and tanning beds;
- Limit locker room use and avoid use if possible;
- Requiring patrons to spray showers with a provided cleaning spray after use; and
- Requiring workers to clean and sanitize bathrooms and locker rooms regularly throughout the opening hours in addition to the regular cleaning schedule.
Beauty Salons, Barber Shops, Estheticians, Body Art Studios, and Massage Therapists
Effective as of April 24, 2020, beauty salons, barber shops, estheticians, body art studios, massage therapists, and the training facilities for each must implement the following additional mitigating measures as practicable:
- Providing services by appointment only. Walk-in patrons should not be allowed;
- Patrons should be required to sanitize their hands upon entering the facility and before any treatment;
- Providing hand sanitizer or sanitization wipes to patrons upon arrival;
- Posting signs at the entrance and at eye-level at each workstation stating that any patron who has symptoms of COVID-19 must reschedule their appointment;
- Allowing only one patron per service provider in the business at any one time;
- Allowing one parent to be within a facility if a minor child is receiving a haircut;
- Requiring patrons to wait in their car until their service provider is ready;
- Staggering use of every-other workstation or spacing workstations more than ten (10) feet apart, whichever option is practicable given the facility’s configuration;
- Staggering work schedules so that no more than 50% of the normal number of employees providing services will be in the business at a time;
- Requiring all employees to wear PPE as available and appropriate to the function and location of the worker within the business location;
- Sanitizing all equipment, chairs, and tables used by employees and patrons between each client visit;
- Utilizing disposable materials and supplies as much as practicable according to state rules and regulations; and
- Training all employees on additional measures both verbally and in writing.
Indoor Movie Theaters and Cinemas
Indoor movie theaters and cinemas choosing to operate during the effective dates of the Order are required to implement the following additional mitigating measures:
- Each party of patrons must be seated at least six feet apart. No party seated together may number more than six individuals;
- At least one usher must be used in each auditorium before and at some point during each showing to ensure that proper social distancing protocol is enforced;
- Seats, armrests, handrails, doors, doorknobs, and door handles in each theater must be thoroughly sanitized before and after each showing;
- Tape must be applied to floors at ticket counters and concession stands to enforce proper social distancing protocol for patrons who are waiting in line;
- Restrooms must be cleaned and disinfected regularly, and touchpoints must cleaned no less than once per hour;
- Food service areas must adhere to the same guidelines set forth for restaurants and dining services;
- Party rooms located at theaters may not host parties or Gatherings; and
- Playgrounds and arcade rooms, if any, must be closed.
Bowling alleys choosing to operate during the effective dates of the Order are required to implement the following additional mitigating measures:
- Placing signage at the entrance and throughout the facility to instruct patrons of social distancing requirements and other instructions and limitations, as applicable;
- Providing hand sanitizer stations for patrons throughout the facility;
- Food service areas must adhere to the same guidelines set forth for restaurants and dining services;
- Tape must be applied to floors at ticket counters and rental stations to enforce proper social distancing protocol for patrons who are waiting in line;
- Removing items from all self-service bowling ball, bowling shoe, and other bowling accessory stations and have workers provide such items to patrons directly;
- Allowing groups of six patrons or less per lane;
- Staggering use of lanes so that only every other lane or every third lane is in use to maintain proper social distancing between groups of patrons. Each party of patrons must be seated at least six feet apart;
- Score keeping machines, ball returns, tables, seats, and other fixtures at each bowling lane must be thoroughly sanitized before and after each use;
- Bowling balls and bowling shoes must be thoroughly sanitized before and after each use;
- Party rooms located at bowling alleys may not host parties or gatherings; and
- Playgrounds and arcade rooms, if any, must be closed.
Order Suspends Inconsistent Restrictions by Georgia Counties and Cities
The Order suspends the enforcement of all local ordinances and orders to the extent they conflict or are inconsistent, and specifically provides that the “operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance.” As such, Georgia counties and cities have no ability to impose additional restrictions on individuals who are part of the workforce for Critical Infrastructure or non-Critical Infrastructure businesses in performing their work.
Penalties and Enforcement
The Order states that any person who violates the Order will be guilty of a misdemeanor and authorizes the closure of any business for non-compliance until May 13, 2020 (the current term of the Order). Officials enforcing the Order should take reasonable steps to provide notice before issuing a citation or making an arrest, and are permitted to mandate the closure of a business only after providing reasonable notice and issuing at least two citations. The Order also authorizes the Georgia Department of Public Safety and the state agencies with primary regulatory authority over the entities covered therein to assist in the enforcement of the Order.
1 “Gathering” is defined as 10 or more individuals physically present at any space where the individuals cannot maintain at least 6 feet distance between themselves and any other person. The requirement does not apply to groups that are transitory or incidental.