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 Saturday, March 21, 2020, Missouri government officials issued a series of new orders to address the 2019 Novel Coronavirus (“COVID-19”) for the State of Missouri, St. Louis County, and City of St. Louis. These measures include a “Social Distancing” order for the State of Missouri and “Stay at Home” orders aimed at St. Louis County and the City of St. Louis. All three orders go into effect on Monday, March 23, 2020.
These orders were spurred by the rapid spread of COVID-19 in the St. Louis region and across Missouri. On March 7, 2020, Missouri had its first confirmed case of COVID-19, a resident of St. Louis County. By March 18, 2020, Missouri had its first death from COVID-19 and by March 20, 2020, St. Louis County had its first resident death from COVID-19 as well. The number of confirmed cases continue to increase exponentially. These orders aim to protect the health and safety of citizens and workers. None of the orders impact businesses deemed essential by the issuing government authorities (i.e., grocery stores, gas stations, parks, and banks).
The following are critical takeaways for employers as to each respective order.
MISSOURI SOCIAL DISTANCING ORDER
Governor Parson issued a Social Distancing Order for the State of Missouri with social distancing guidelines, which takes effect on March 23, 2020 and lasts until April 6, 2020. This order is the least impactful for employers.
Specifically, this order requires residents of Missouri to:
- Avoid social gatherings of more than 10 people in a single space at the same time;
- Avoid eating or drinking at restaurants, bars, or food courts (drive-thru, pickup, and delivery allowed); and
- Not visit nursing homes, long-term care facilities, retirement homes, or assisted living homes unless to provide critical assistance.
In addition, the order provides that schools shall remain closed. Governor Parson’s order further provides that in places that remain open, individuals should maintain six feet distance between one another, practice good hygiene, and, where feasible, work from home.
ST. LOUIS REGION STAY AT HOME ORDERS
City of St. Louis Mayor Lyda Krewson and St. Louis County Executive Dr. Sam Page have coordinated the issuance of stay at home orders for the St. Louis region. The intent of both orders is to ensure the maximum number of people stay at home in order to prevent the spread of COVID-19, while ensuring that essential services will continue in the City of St. Louis and St. Louis County.
Both orders for the St. Louis region require all non-essential businesses to cease all operations other than “Minimum Basic Operations.” The “Minimum Basic Operations” provisions allow all businesses to continue to operate as necessary to maintain the value of inventory and infrastructure, provide security, process employee payroll or benefits, and facilitate employees working remotely.
Each order specifies what is considered an essential business as discussed below. The St. Louis County Order (“County Order”) provides extensive guidance respecting the conduct of business within St. Louis County. The City of St. Louis Order (“City Order”) follows addresses the same issues, but is less detailed than the County Order. The specific guidance from the orders is outlined below.
City of St. Louis
The Health Commissioner of the City of St. Louis has issued a Stay Home – Essential Activities Only Order, which goes into effect on March 23, 2020 and lasts until April 22, 2020. As noted above, the City Order provides that non-essential businesses may continue Minimum Basic Operations only. The City Order provides a list of 24 exempted categories of essential businesses, not-for-profits, and institutions, but does not otherwise provide specific guidance.
In the City of St. Louis, “Essential Businesses” are defined as:
- Healthcare facilities and businesses that produce or provide medical care, supplies or medicine (not including fitness centers or gyms, massage or tattoo parlors, hair salons, barbershops, nail salons or similar establishments);
- Grocery stores, convenience stores, or other food or household consumer products retailers;
- Restaurants and bars, but only for pickup/curbside/carry-out/take-out/delivery;
- Businesses, not-for-profits, or institutions that ship or deliver groceries, food, or goods;
- Businesses, not-for-profits, or institutions that provide food, shelter, utilities, social services, or other necessities;
- Food cultivation, including farming, life stock, and fishing;
- Food and beverage wholesaling, storage, warehousing, and distribution businesses;
- Newspapers, television, radio, and other media;
- Gas stations, vehicle-supply, vehicle-repair, and related facilities;
- Banks and financial institutions;
- Hardware stores;
- Businesses, not-for-profits, or institutions providing mailing and shipping services, including post office boxes;
- Laundromats and laundry service providers;
- Transportation services including rental, taxis and rideshares;
- Home-based care for seniors, adults, or children;
- Facilities and shelters for adults and children, including long-term care facilities (which includes hospice);
- Hotels and other commercial lodging;
- Professional services (e.g., accountants, lawyers, engineers);
- Childcare facilities providing services to first responders, and all emergency personnel;
- Manufacture, distribution, and supply chain for exempt businesses; and
- Federal, state, and local government.
St. Louis County
The St. Louis County Department of Public Health has issued a Stay at Home Order, which also goes into effect on March 23, 2020, and extends to April 22, 2020. As noted above, the County Order provides that all businesses may continue Minimum Basic Operations.
The following outlines key provisions for employers under the County Order:
1. All non-essential businesses must cease operations other than “Minimum Basic Operations,” employees or contractors working from home, and providing pickup/delivery services.
As noted above, “Minimum Basic Operations” includes “[o]perations necessary to maintain the value of inventory and infrastructure, provide security, process employee payroll or benefits, and facilitate employees working remotely.”
2. All businesses must ensure compliance with “Social Distance Requirements” for employees, customers, and the public, which is defined as:
- Maintaining at least six-foot social distance from other individuals;
- Washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer with more than sixty percent alcohol;
- Covering coughs or sneezes with something other than hands;
- Regularly cleaning high-touch surfaces; and
- Not shaking hands.
3. No business may engage in “Prohibited Activity,” which means any of the following:
- Gatherings of 10 or more people in a single space or room; and
- Activities of public places of amusement (indoor or outdoor), including but not limited to amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, museums, arcades, fairs, children’s play centers, playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters, concert and music halls, country clubs, golf clubs (with the exception of playing golf and driving ranges following “Social Distancing Requirements”), and social and athletic clubs.
4. “Essential Businesses” may continue necessary activities as long as they comply with “Social Distancing Requirements” for employees, customers, and the public. All Essential Businesses are encouraged to remain open.
In St. Louis County, “Essential Businesses” are defined as:
- Grocery stores, produce markets and stands, food banks and pantries, convenience stores, or other food or household consumer products retailers;
- Businesses that engage in food cultivation (including farming, live stock and fishing), production, manufacturing, processing, packaging, wholesaling, storage, warehousing, or distribution;
- Businesses that provide food, shelter, social services, or other necessities of life for economically disadvantaged or people otherwise in need of social services;
- Newspapers, television stations, radio stations, and other media services;
- Gas stations, auto-supply, auto-repair, and related facilities;
- Banks, financial institutions, broker-dealers, asset managers, and businesses that process payroll or financial transactions and services;
- Trash collection and disposal;
- Hardware stores;
- Hotels, motels, and bed and breakfast establishments;
- Plumbers, electricians, exterminators, and other service providers who provide services that are necessary for essential operations;
- Businesses that provide construction services;
- 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 (with Social Distancing Requirements) or to provide food to students or the public through pick-up/take-away basis;
- Businesses providing private security services;
- Laundromats, dry cleaners, and laundry service providers;
- Funeral homes, crematoriums, cremation, burial, mortuary services, and cemeteries;
- Churches, religious services, and other spiritual practices but only to the extent consistent with Social Distancing Requirements and gathering size limitations;
- Storage for Essential Businesses;
- Restaurants and other facilities that prepare or serve food for pick-up/take-out;
- Businesses that provide emergency repair and safety services for Essential Infrastructure;
- Businesses that supply products needed for people to work from home;
- Businesses that supply Essential Businesses with support or supplies necessary to operate, including but not limited to maintenance, security, janitorial, and other similar services;
- Businesses that ship or deliver groceries, food, beverages, goods, or services for homes or other Essential Businesses;
- Non-profit organizations to the extent that the organizations are providing financial or social support for people and businesses that are impacted by COVID-19;
- Businesses that manufacture or supply products necessary to meet the Social Distancing Requirements, including but not limited to manufacturers of hand sanitizer or other health, hygiene and cleaning products, and the businesses whose products and services are necessary to the ongoing operation of these businesses;
- Public transportation and personal transportation services including airlines, taxis, transportation network providers, livery services, vehicle rental services, and other private transportation providers providing necessary and authorized services;
- Businesses that provide home-based care for the health of seniors, adults, or children;
- Residential facilities and shelters for seniors, adults, or children;
- Defense and national security-related operations supporting the federal government or a contractor to the federal government;
- Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities or to assist a person in the exercise of constitutional rights, including but not limited to services required by a court order or rule, a fiduciary duty, a duty to the person's client, or an ethical obligation;
- Businesses and agencies that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, childcare, vocational services, or rehabilitation services;
- Adoption agencies;
- Labor union essential activities, including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in Essential Businesses (checks to be completed by telephone or remote where possible);
- Professional services, such as legal or accounting services, when related to the necessary activities of Essential Businesses; and
- Businesses or independent providers that provide childcare or other dependent service providers but only to the extent that they provide services to people who are necessary employees of Essential Businesses, and including specifically without limitation Healthcare Operations, police departments, fire districts, jails, corrections medicine services, emergency management functions, food distribution companies, groceries, restaurants, pharmacies, public transit agencies, or businesses that manufacture or supply products necessary to meet Social Distancing Requirements and provided they comply with Social Distancing Requirements.
The County Order states that Childcare providers must also ensure:
- Childcare is carried out in stable groups of 12 or less;
- Children do not change from one group to another in the same day;
- If more than one group of children is cared for at one facility, each group is in a separate room and groups do not mix with each other; and
- Childcare providers are only with one group of children in the same day.
5. The County Order also defines other groups that are allowed to operate as Essential Businesses including Healthcare Operations, Essential Infrastructure, and Essential Government Functions.
Healthcare Operations include, but are not limited to:
- Hospitals, clinics, doctor offices, dentist offices, eye care offices;
- Healthcare facilities;
- Healthcare suppliers;
- Home healthcare service providers;
- Healthcare providers (including doctors, nurses, social workers, technicians, therapists, community health workers, hospital and lab personnel, among others);
- Organizations related to blood/plasma/platelet donation and collection;
- Reproductive healthcare providers;
- Substance abuse counselors and mental health providers;
- Pharmaceutical and biotechnology companies;
- Ancillary healthcare services and laboratories;
- Elder care;
- Medical wholesale and distribution;
- Veterinary care and animal health services;
- COVID-19 services including testing and research;
- Facilities licensed pursuant to state constitutional amendment;
- Design, construction, or other support services for the function and care of healthcare entities; and
- Manufacturers and distributors of personal protective equipment or other medical equipment.
Essential Infrastructure includes, but is not limited to, the operation and maintenance of:
- Utilities, power, electric, gas, water, sewer, solid waste collection and removal, and other public works;
- Construction (specifically including construction of affordable housing and for individuals experiencing homelessness);
- Airport operations (specifically including airport concessions, parking, construction, air transportation employees, and aviation security and management);
- Oil refining;
- Roads, highways, public transportation;
- Internet and telecommunications systems (specifically including essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services);
- Logistics facilities and providers (specifically including warehouses, trucking, consolidators, fumigators, and handlers), distribution facilities, and sorting facilities; and
- Design and construction of supply chain, logistics, and sorting facilities for commerce and food goods.
Essential Governmental Functions include, but are not limited to, all services, offices, agencies, and officials, needed to continue:
- Federal, state, or local governmental departments;
- Political subdivisions;
- Entities created by intergovernmental agreement;
- Essential court functions; and
- Any government function necessary to provide for health, safety, and welfare of the public.
The County Order also states that schools and social services providing food services to students or members of the public may continue to do so, provided that the food is provided on a pick-up or take-away basis only.
6. The Order further outlines “Essential Activities,” “Essential Products and Services,” and “Essential Travel.”
Generally, all activities, products and services, and travel should be limited to those necessary to support Essential Businesses, Healthcare Operations, Essential Infrastructure, and Essential Government Functions to aid in the goal of ensuring the maximum number of people remain in their places of residence to the maximum amount feasible, while enabling these essential services to continue.
7. Certain government and emergency services individuals and entities are completely exempt from the County Order.
These individuals and entities include: 911 call centers, fire personnel, corrections personnel, Fusion Center employees, hazardous material responders, law enforcement and emergency service operations digital systems infrastructure employees, first responders, emergency management personnel, emergency dispatchers, court personnel, and law enforcement personnel.
8. The County Order contains specific enforcement mechanisms.
The County Order provides that violation is punishable as a criminal misdemeanor pursuant to § 192.300 R.S. Mo. Additionally, the County Counselor has the authority to take appropriate actions with respect to any person or business that fails to comply or attempt to comply with the County Order. The County Counselor also has authority to disqualify an Essential Business and to seek emergency injunctive or other civil relief as deemed appropriate.
The County Order provides that a person or business will receive notice and a reasonable opportunity to be heard under the circumstances. Notice to an Essential Business is presumed reasonable if it is in writing, provides an opportunity to respond in a reasonable time frame (not less than two hours), and is addressed to the chief executive, general counsel, counsel of record, or registered agent of the Essential Business.
Enforcement for all of the orders will be a difficult task, as the relevant governmental entities may lack the resources, capacity, or desire to police every individual’s behavior. Nonetheless, it should be expected that law enforcement will attempt to take action when necessary.