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 Sunday, March 22, 2020, Ohio Governor Mike DeWine announced that Ohio’s Director of the Department of Health, Dr. Amy Acton, signed an Order requiring all Ohio residents to “stay at home or at their place of residence,” except as allowed by the Order. The Order goes into effect at 11:59 p.m. on March 23, 2020, and remains in effect until 11:59 p.m. on April 6, 2020, unless modified by Dr. Acton.
Ohio joins California, New York, New Jersey, Illinois, Connecticut, and several other states and localities in issuing such an order. In addition to its “stay at home” directive, Ohio’s Order sets forth social distancing requirements and provides that Ohioans may leave their homes or places of residence only for “essential activities, essential governmental functions, or to participate in essential businesses and operations,” as defined in the Order.
The Order covers “any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.” It does not prohibit work-from-home situations and specifically provides that businesses, including home-based businesses, may continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home).
Below are the critical takeaways for Ohio employers:
1. All Ohio Businesses May Continue “Minimum Basic Operations,” Which Include:
- The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions; and
- The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.
2. All Ohio Businesses—Whether Conducting Minimum Basic Operations or Exempt as an Essential Business or Operation—Must Comply with Social Distancing Requirements.
Under the Order’s Social Distancing Requirements, employees must:
- Maintain at least six-foot social distancing from other individuals, including when standing in line;
- Wash hands with soap and water for at least 20 seconds as frequently as possible, or use hand sanitizer;
- Cover coughs or sneezes (into the sleeve or elbow, not hands);
- Regularly clean high-touch surfaces; and
- Abstain from shaking hands.
Also, businesses are required to take proactive measures to ensure compliance with the Order’s Social Distancing Requirements, including where possible:
- Designating with signage, tape, or by other means, six-foot spacing for employees and customers;
- Having hand sanitizer and sanitizing products readily available for both employees and customers;
- Implementing separate operating hours for elderly and vulnerable customers; and
- Posting online whether a facility is open and how to best reach the facility and continue services by phone or remotely.
3. Under the Order, Ohio Employers Must Do the Following:
- Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
- Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (3 full days) AND symptoms have improved for at least 72 hours AND at least 7 days have passed since symptoms first began. The Order explicitly states that employers should not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness.
- Ensure that sick leave policies are up to date, flexible, and non-punitive 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 to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
- 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.
- Reinforce key messages—stay home when sick, use cough and sneeze etiquette, and practice hand hygiene—to all employees, 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.
- 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.
- Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend a portion of operations).
4. Essential Businesses and Operations are Exempt from the Order and Are Encouraged to Remain Open.
The Order defines Essential Businesses and Operations to include Healthcare and Public Health Operations, Human Services Operations, Essential Government Functions, and Essential Infrastructure, as explained in more detail below, as well as all workers identified in the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency’s March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.
Essential Businesses and Operations specifically include:
- Stores that sell groceries and medicine;
- Food, beverage, and licensed marijuana production and agriculture;
- Organizations that provide charitable and social services;
- Religious entities;
- Media (newspaper, television, radio, and other media services);
- First amendment protected speech;
- Gas stations and businesses needed for transportation;
- Financial and insurance institutions (including banks, currency exchanges and consumer lenders, among others);
- Hardware and supply stores;
- Critical trades (including plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, HVAC, painting, moving and relocation services, among others);
- Mail, post, shipping, logistics, delivery, and pick-up services;
- Educational institutions (both public and private);1
- Laundry services;
- Restaurants for consumption off-premises;
- Supplies to work from home;
- Supplies for essential business and operations (including IT equipment, computers, electronics, hardware, sanitary equipment, medical equipment, food, beverages, firearm and ammunition suppliers and retailers for purposes of safety and security, among others);
- Transportation (including public and private transit, airlines, taxis, transportation networks such as ride-sharing services);
- Home-based care and services for adults, seniors, children, people with disabilities, substance use disorders, and/or mental illness (including caregivers such as nannies and other in-home services such as meal delivery);
- Residential facilities and shelters;
- Professional services (such as legal, accounting, insurance and real estate services);
- Manufacturing companies, distributors, and supply chain companies producing and supplying critical products and services in and for industries (such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitation, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications and products used by other essential businesses and operations);
- Critical labor union functions;
- Hotels and motels; and
- Funeral services.
5. Healthcare and Public Health Operations are Exempt from the Order.
The Order allows individuals to leave their residences to work for or obtain Healthcare and Public Health Operations, which are broadly construed and include, but are not limited to the following:
- Dental offices;
- Public health entities (including those that compile and communicate public health information);
- Pharmaceutical, pharmacy, medical device/equipment, and biotechnology companies (including operations, research/development, manufacturing, and supply chain companies);
- Organizations collecting blood, platelets, and plasma;
- Licensed medical marijuana dispensaries and cultivation centers;
- Obstetrics and gynecology providers;
- Eye-care centers;
- Home healthcare services providers;
- Mental health and substance abuse providers;
- Any healthcare facility, supplier, or provider of a healthcare service related to those referenced above; and
- Entities that transport and dispose of medical materials and remains.
The Healthcare and Public Health Operations exemption also includes “manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.” Likewise, it includes “veterinary care and healthcare services provided to animals.” It does not, however, include fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, or similar facilities.
6. Human Services Operations are Exempt from the Order.
The Order allows individuals to leave their residences to work or obtain services at any Human Services Operations, including but not limited to, the following:
- Any provider funded by the Ohio Department of Aging, Department of Developmental Disabilities, Department of Health, Department of Job and Family Services, Department of Medicaid, Department of Mental Health and Addiction Services, Opportunities for Ohioans with Disabilities, Department of Veterans Services, or Department of Youth Services that provides services to the public, including state-operated, institutional, or community-based settings;
- Long-term care facilities;
- Day care centers, day care homes, group day care homes;
- Residential settings and shelters for adults, seniors, children, or people with developmental disabilities, intellectual disabilities, substance use disorders, or mental illness;
- Home-based settings to provide services to adults, seniors, children, or people with physical, intellectual or developmental disabilities;
- Field offices that provide and help determine eligibility for basic needs, such as food, cash assistance, medical coverage, child care, vocational services, and rehabilitation services;
- Developmental centers;
- Adoption agencies; and
- Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or otherwise needy individuals.
7. The Order Includes Exemptions for Essential Infrastructure Operations.
The Order allows individuals to leave their residences to provide services for or perform work for Essential Infrastructure operations, which are broadly construed and include, but are not limited to, the following:
- Food production, distribution, and sale;
- Building management and maintenance;
- Airport operations;
- Utilities (including water, sewer, gas, and electrical) operations and maintenance;
- Distribution centers;
- Oil and biofuel refining;
- Roads, highways, railroads, and public transportation, and ports;
- Cybersecurity operations;
- Flood control;
- Solid waste and recycling collection and removal; and
- Internet, video, and telecommunications systems.
8. Essential Governmental Functions are Exempt from the Order.
Naturally, the Order allows individuals to leave their homes to provide Essential Government Functions, which are generally defined as any service necessary for the continued operation of government or to support the health, safety, and welfare of the public. The following personnel are deemed essential to government function: first responders, emergency management personnel, emergency dispatchers, legislators, judges, court personnel, corrections personnel, jurors and grand jurors, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other government employees working for or to support Essential Businesses and Operations that are categorically exempt from the Order.
9. Enforcement of the Order.
The Order authorizes state and local law enforcement to enforce the Order “to the extent set forth in Ohio law.” Public officials enforcing the Order are to direct questions to local health departments, which are authorized to answer questions in writing consistent with the Order. Persons who violate the Order may be charged with a second-degree misdemeanor. See O.R.C. §§ 3701.352 and 3701.99(C).
10. Individuals May Leave Their Homes for Essential Activities and Travel.
Individuals may leave their residences to engage in essential activities or travel provided they comply with all social distancing requirements.
- Essential activities include:
- Tasks essential to the health and safety of the individual, their family or household members, or those who are unable or should not leave their home (including pets);
- Obtaining necessary supplies and services for the individual, their family or household members, or those who are unable or should not leave their home;
- To engage in limited outdoor activities, such as walking, hiking, running or biking;
- For certain types of work (as explained above); and
- To take care of or transport a family member, friend or pet.
- Essential travel includes:
- Any travel related to providing or accessing essential activities, essential governmental functions, essential businesses and operations, or minimum basic operations;
- Travel to care for the elderly, minors, dependents, persons with disabilities or other vulnerable persons;
- Travel to or from educational institutions to receive materials for distance learning, to receive meals, and for other related services;
- Travel to return to a place of residence from outside the jurisdiction;
- Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement; and
- Travel required for non-residents to return to their place of residence outside the State of Ohio.
Additional information about the Order can be found at Ohio’s COVID-19 website.
1 The Order is consistent with and does not amend or supersede prior Orders regarding the closure of schools.