State flag of Ohio

Following several other states, and at the direction of Ohio Governor Mike DeWine, Ohio Department of Health Director Dr. Amy Acton issued a shelter-in-place order for Ohio residents titled “Director’s Stay at Home Order.” The order went into effect on March 23, 2020, and will remain in place until 11:59 p.m. on April 6, 2020, unless rescinded or modified. Below are details employers need to know about the new order.

Highlights for Employers

  • The order is effective from March 23, 2020, at 11:59 p.m. through April 6, 2020.
  • “Essential Businesses and Operations” are excepted, and the list is very broad.
  • All businesses are able to keep some employees working in order to maintain minimum basic operations.
  • The order includes a “checklist” for employers regarding telework, sick employees, sick leave policies, sanitizing, and the need to change business practices to maintain critical operations.
  • The order supplements previously issued orders regarding unemployment relief, school closings, and deferral or payment of health insurance benefit premiums and workers compensation premiums.

The Stay-at-Home Order

All businesses, except “Essential Businesses and Operations” are “required to cease all activities within the State except Minimum Basic Operations.” The term “minimum basic operations” includes “the minimum necessary activities to maintain the value of the business’ inventory, preserve the condition of the business’ physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions” as well as the minimum necessary activities needed to continue work from home capabilities.

Businesses may continue to operate with employees working from home. Businesses permitted to maintain operations (including minimum basic operations) must comply with social distancing requirements, including maintaining six-foot distances among employees and the public, including when customers are standing in line.

The order’s list of essential businesses and operations is extensive. Among other categories, the list includes “CISA List” businesses, which are businesses that fall into the category of “Essential Critical Infrastructure Workers” listed on the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency’s (CISA) “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.”

The order provides specific examples and broad categories. The following is a brief summary of those essential businesses and operations.

  • Healthcare and Public Health Operations is broadly defined and includes: hospitals, clinics, dental offices, pharmacies, public health entities, eye care centers, veterinarian clinics, and the like, as well as manufacturers and distributors of medical equipment and Personal Protective Equipment (PPE).
  • Human Services Operations includes long-term care facilities, day centers, group day care homes, residential settings and shelters for persons with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness; field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services, developmental centers, adoption agencies, businesses that provide food, shelter, and social services for needy individuals.
  • Essential Infrastructure includes food production/distribution; construction; building management and maintenance; airport operations; utilities; public transportations; ports; cybersecurity operations; flood control; waste removal and recycling; internet, video, and telecommunications.
  • Essential Government Functions includes first responders, emergency management personnel, emergency dispatchers, legislators, judges, court personnel, jurors and grand jurors, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, and military. This category also includes state and city services that provide for or support the health, safety, and welfare of the public, including contractors performing those functions. The order directs cities to identify employees or contractors necessary to perform those functions.
  • Grocery/Medicine. Stores that sell groceries, medicine, pet supplies, alcoholic and non-alcoholic beverages, including their supply chains and administrative support.
  • Food and Beverage Production, including agriculture, licensed marijuana production, and businesses that provide food and shelters to animals.
  • Charitable and Social Services Organizations, such as food banks, when providing food, shelter, social services, and other necessities of life to the needy.
  • Religious Entities
  • Media
  • First Amendment Protected Speech
  • Gas Station and Transportation Businesses
  • Financial and Insurance Institutions Hardware and Supply Stores
  • Critical Trades, including building and construction trades, plumbers, electricians, exterminators, cleaning for commercial and government properties, security, operating engineers, HVAC, painting, moving and relocation services.
  • Mail, Shipping, Delivery, and Pickup Services, including businesses that ship food.
  • Educational Institutions, for the purpose of facilitating distance learning and critical research
  • Laundry Services
  • Restaurants, for consumption off-premises, such as carry-out or curbside pick-up.
  • Office Supplies, or businesses that sell products needed for people to work from home
  • Supplies for Essential Businesses and Operations, such as computers, AV, household appliances, IT and telecommunication equipment, hardware, paint, sanitary equipment, personal hygiene supplies, chemicals, soaps and detergents, and firearm and ammunition
  • Transportation, including airlines, taxis, ridesharing companies, marinas, docks, and boat storage
  • Home-based Care and Services for adults, seniors, children and/or people with disabilities, substance use disorders, and/or mental illness
  • Residential Facilities and Shelters for adults, seniors, children, pets, or people with developmental disabilities, disabilities, substance use disorders, and/or mental illness.
  • Professional services, such as legal services, accounting services, insurance services, and real estate services
  • Manufacturing, Distribution, and Supply Chain for critical products and industries, including pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other essential businesses and operations
  • Critical Labor Union Functions
  • Hotels and Motels
  • Funeral Services

Only “Essential Travel and Essential Activities” are permitted. Public transit remains open, subject to social distancing requirements. “Essential travel” includes travel related to the aforementioned permitted business and personal activities. Residents may leave home for “essential activities,” which include health and safety tasks, obtaining necessary supplies and services, including supplies to work from home, automobile supplies, and products needed for essential operation of residences.

Outside of a household or residence, gatherings of more than 10 people are prohibited. Caring for family members, friends, and pets is permitted, including attending weddings and funerals. Outdoor activity is permitted subject to social distancing requirements. Public parks and open outdoor recreation areas are permitted, but playgrounds shall be closed.

Businesses that remain open under the aforementioned rules must following the order’s social distancing requirements where possible:

  • Designate six-foot distances with signage, tape, or other means for employees and customers in line to maintain appropriate distance.
  • Hand sanitizer and sanitizing products readily available.
  • Separate operating hours for vulnerable populations
  • Online and remote access, including posting when a facility is open and how best to reach the facility.

The order may be enforced by state and local law enforcement, though as of now the order does not list a specific penalty for noncompliance.

The order includes a “COVID-19 Information and Checklist for Businesses/Employers” (set forth in its entirety below), which states that “businesses and employers are to take the following actions:

  1. Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
  2. Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  3. Ensure that your 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 COVID-19 symptoms (fever, cough, or shortness of breath).
  4. 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.
  5. 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.
  6. 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.
  7. Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, and temporarily suspend some of your operations).”

While the definitions of “essential businesses” are broad, the order identifies several actions for employers to take in the workplace to stop the spread of the coronavirus. Employers may want to review their existing remote work and return-to-work protocols to identify whether they are consistent with the order.

Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.

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