As we reported on Friday, March 20, all non-essential businesses across New York State are under orders from Governor Cuomo to keep 100 percent of their employees at home, effective as of 8:00 p.m. on Sunday, March 22 and continuing until further notice. Additional details on that Executive Order can be found here.
Since then, the governors of Connecticut and New Jersey have issued their own executive orders, mandating the closure of certain types of businesses, as summarized below.
On March 20, 2020, Connecticut Governor Lamont issued an executive order requiring all non-essential businesses and not-for-profit entities to reduce by 100 percent their in-person workforces at any location across the state, by no later than 8:00 p.m. on March 23, 2020. This restriction is to remain in effect through April 22, 2020, unless earlier modified, extended, or terminated by the Governor.
Exceptions for Essential Businesses
Any essential business or entity providing essential goods, services or functions shall not be subject to these in-person restrictions. The Connecticut Department of Economic and Community Development (DECD) is expected to issue guidance by 8:00 p.m. on March 22 about which businesses are essential.
Those business shall include, without limitation:
- Essential health care operations, including hospitals, clinics, dentists, pharmacies, elder care and home health care workers;
- Companies and institutions involved in the research and development, manufacture, distribution, warehousing, and supplying of pharmaceuticals, biotechnology therapies, health care data, consumer health products, medical devices, diagnostics, equipment, services and any other healthcare related supplies or services;
- Essential infrastructure, including utilities, wastewater and drinking water, telecommunications, airports and transportation infrastructure;
- Manufacturing, including food processing, pharmaceuticals, and industries supporting the essential services required to meet national security commitments to the federal government and U.S. Military;
- The defense industrial base, including aerospace, mechanical and software engineers, manufacturing/production workers, aircraft and weapon system mechanics and maintainers;
- Essential retail, including grocery stores and big-box stores or wholesale clubs, provided they also sell groceries;
- Pharmacies, gas stations and convenience stores; food and beverage retailers (including liquor/package stores and manufacturer permittees) and restaurants (subject to limitations imposed by prior and potential future executive orders);
- Essential services, including trash and recycling collection, hauling, and processing, mail and shipping services;
- News media;
- Legal and accounting services;
- Banks, insurance companies, check cashing services, and other financial institutions;
- Providers of basic necessities to economically disadvantaged populations;
- Vendors of essential services and goods necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses, including pest control and landscaping services; and
- Vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and the provision of goods, services or functions necessary for the health, safety and welfare of the public.
Prior executive orders designed to facilitate social distancing in Connecticut remain in effect, including the executive order Governor Lamont signed on March 16, 2020 which mandated the closure of bars and restaurants to all service except food and non-alcoholic beverage takeout and delivery; closed gyms, fitness centers and movie theaters; and prohibited on-site operations at off-track betting facilities.
Similarly, the executive order mandating the closure of large shopping malls in Connecticut remains in effect, and schools remain closed.
New Jersey Governor Murphy issued an executive order, effective as of 9:00 p.m. on March 21, 2020 directing all residents of the state to stay at home until further notice. All social gatherings are also prohibited. Residents are permitted to leave home to obtain essential goods or services, seek medical attention, visit family or close friends, report to work, or engage in outdoor activities.
The executive order also mandates the closure of all “non-essential retail businesses.”
Exceptions for Essential Businesses
Essential retail businesses that are permitted to remain open in New Jersey include the following:
- Grocery stores, farmer's markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
- Pharmacies and medical marijuana dispensaries;
- Medical supply stores;
- Gas stations;
- Convenience stores;
- Ancillary stores within healthcare facilities;
- Hardware and home improvement stores;
- Banks and other financial institutions;
- Laundromats and dry-cleaning services;
- Stores that principally sell supplies for children under five years;
- Pet stores;
- Liquor stores;
- Car dealerships, but only for auto maintenance and repair, and auto mechanics;
- Printing and office supply shops; and
- Mail and delivery stores.
The Order also does not impact the following:
- (i) Provision of health care or medical services;
- (ii) Access to essential services for low-income residents, such as food banks;
- (iii) Operations of the media;
- (iv) Law enforcement agencies; or
- (v) Operations of the federal government.
In addition to mandating the closure of all non-essential retail businesses across the state, the prior ban on recreational and entertainment businesses remains in effect, as does the requirement that all restaurants operate by delivery and takeout only. Schools across the state remain closed as well.
Other New Jersey businesses and non-profits are required only to allow employees to work from home “wherever practicable,” and otherwise to “make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” Notably, however, these businesses are not under orders to have 100 percent of their employees stay home from work, as is now the case in New York.
Instead, the New Jersey Executive Order provides the following non-exhaustive examples of employees who need to be present at their work site in order to perform their job duties: law enforcement officers, fire fighters, other first responders, cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, IT maintenance workers, janitorial and custodial staff, and certain administrative staff.
Employer COVID-19 Resources
Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.