On March 23, 2020, Indiana Governor Eric J. Holcomb issued a “Stay-at-Home Order,” Executive Order 20-08 (E.O. 20-08). Under the order, Indiana residents are directed to stay in their homes except to engage in certain “Essential Activities,” including taking care of others, obtaining necessary supplies, and for health and safety reasons. Individuals are also permitted to leave home to work for certain “Essential Business or Operations,” and to carry out certain permitted activities, including “Minimum Basic Operations.” Under the order, nonessential business operations may continue only to the extent that employees or contractors are performing activities exclusively at their own residences. The order is in effect from 11:59 p.m. EST on Tuesday, March 24, 2020, to 11:59 p.m. EST on Monday, April 6, 2020. The order may be extended if necessary.
E.O. 20-08 defines “Minimum Basic Operations” as the minimum necessary activity for maintenance of the inventory, physical plant and equipment, security, payroll and employee benefits, and those operations necessary to facilitate employees working remotely. Individuals and businesses performing “Minimum Basic Operations” must maintain social distancing requirements, as defined in the Order and detailed below, to the fullest extent possible.
“Essential Activities” Exempt From Stay-at-Home Order
Under the order, individuals may leave their residences for “Essential Activities” for health and safety such as obtaining necessary supplies and services, outdoor activities, certain types of essential work (described further below), and to take care of others. The order defines the following as “Essential Activities”:
- Health and Safety: The non-exhaustive list of “Health and safety” activities include, “seeking emergency services, obtaining medical supplies or medication, or visiting a health care professional.”
- Necessary Supplies and Services: The non-exhaustive list of “Necessary Supplies and Services” includes “groceries and food, household consumer products, supplies necessary to work from home, automobile supplies (dealers, parts, supplies, repair and maintenance), and products necessary to maintain the safety, sanitation, and/or essential operations of homes or residences.”
- Outdoor Activity: So long as social distancing requirements are satisfied, i.e., maintenance of at least six-feet distance from other individuals, “engaging in outdoor activity, including but not limited to, walking, hiking, running or biking.” Public parks and open outdoor recreation areas remain open, however, public access playgrounds, which may increase the spread of COVID-19 are closed.
- Certain Types of Work: Working for “Essential Business or Operations,” which are further defined below qualify as essential activities. These include “Essential Government Functions,” “Healthcare and Public Health Operations,” “Human Services Operations,” “Essential Infrastructure,” and “Minimum Basic Operations.”
- To Take Care of Others: Caring for “a family member, friend, or pet in another household, and transporting family members, friends, or pets as otherwise permitted” qualify as essential activities under the order.
Orders Applicable to All Businesses and Employers
The order also requires all businesses and employers, whether or not “essential,” to:
- to the fullest extent possible, allow employees to work from home;
- encourage ill employees to stay home until they are symptom-free for at least 72 hours, and it has been at least 7 days since they became symptomatic;
- update sick leave policies and be flexible to ensure employees can care for themselves or others;
- separate and send home employees who appear to have severe respiratory illnesses;
- remind employees of health and hygiene, posting notices regarding sanitation practices, and provide sanitation supplies including soap, hand sanitizer, etc.;
- frequently clean commonly touched surfaces; and
- prepare to change business practices if necessary in order to maintain critical operations.
“Essential Business or Operations”
“Essential Business or Operations” include grocery stores, pharmacies, gas stations, police and fire stations, hospitals and health care facilities, garbage pickup, public transit, and public service hotlines. Individuals working for businesses that are deemed essential should continue to go to work and practice social distancing. “Essential Businesses or Operations” include the following:
- Healthcare and Public Health Operations are defined in a non-exhaustive list as “hospitals, clinics, dental offices, pharmacies, public health entities; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies; organizations collecting blood, platelets, plasma, and other necessary materials; obstetricians and gynecologists; eye care centers, including those that sell glasses and contact lenses; home healthcare services providers, mental health and substance abuse providers; other healthcare facilities and suppliers and providers of any related and/or ancillary healthcare services; entities that transport and dispose of medical materials and remains; and veterinary care and all healthcare services provided to animals.” In addition, “manufacturers, technicians, 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.”
- Human Services Operations is defined as including but not limited to, providers funded by the State of Indiana that are providing services to the general public and including “state operated, institutional, or community-based settings provided human services to the public.” This includes long-term care facilities; day care centers, day care homes, group day care homes; residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness; transitional facilities; home-based settings to provide services to individuals with physical, intellectual, and/or developmental disabilities, seniors, adults, and children; 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, and other necessities of life for economically disadvantaged individuals, individuals with physical, intellectual, and/or developmental disabilities, or otherwise needy individuals.”
- Essential Infrastructure is defined as including but not limited to, “food production, distribution and fulfillment centers, storage facilities, marinas and sale, [and] construction.” Other “Essential Infrastructure” includes operation and maintenance for buildings, airport, utility, oil, highway, port, public transportation, waste removal, and telecommunication.
- Essential Government Functions include “first responders, law enforcement, emergency dispatchers and management personnel, legislators, judges, court personnel, jurors and grand jurors, corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military and other government employees working for or supporting ‘Essential Business and Operations.’” In addition, all services provided by the State of Indiana or any local government “needed to ensure the continuing operation of government agencies or to provide for or support the health, safety and welfare of the public, including contractors performing Essential Government Functions.”
Other “Essential Businesses and Operations”
The order includes the following on its list of “Essential Businesses and Operations, which are exempt from the order’s requirement to cease operations (other than to work from home).
- Grocery/Medicine/Household Consumer Products: This is defined to include grocery stores, pharmacies, certified farmers’ markets, produce stands, convenience stores, pet supplies, alcoholic and on-alcoholic beverages and household consumer products, along with the supply chains for these businesses.
- Food, Beverage, Agriculture, and Animal Shelters/Rescues/Kennels: This is defined as including food and beverage manufacturing, as well as “farming, livestock, fishing, baking and other production agriculture, and businesses that provide food, shelter and other necessities of life for animals.”
- Charitable and Social Services: This is defined as including “non-profit organizations such food banks and other entities providing food, shelter and social services for economically disadvantaged, needy and/or individuals with disabilities.”
- Religious Entities: Religious gatherings may occur so long as they abide by the CDC’s guidance on social gatherings.
- Media: This is defined as including “newspapers, television, radio and other media services.”
- Gas Stations and Transportation: This is defined as including “gas stations, auto supply, auto repair, farm equipment, construction equipment, boat repair and related facilities, and bicycle shops.”
- Financial and Insurance Institutions: This is defined as including banks, currency exchanges, consumer lenders, credit unions, pawnbrokers, payday lenders, institutions selling financial products, and insurance companies.
- Hardware and Supply Stores: This includes stores and entities selling “electrical, plumbing and heating material.”
- Critical Trades: This includes “[b]uilding, construction and other trades, including but not limited to, plumbers, electricians, exterminators, operating engineers, cleaning and janitorial staff for commercial and governmental properties, security staff, HVAC, painting and relocation services.”
- Mail, Post, Shipping, Logistics, Delivery, and Pick-Up Services: This includes shipping and delivery services including post offices, grocery, food, vehicle, alcoholic and non-alcoholic delivery services.
- Educational Institutions: Without amending the prior Executive Order closing Indiana’s public schools, this includes public and private schools, colleges and “for the purposes of facilitating distance learning, performing critical research, or performing essential functions.” However, Educational Institutions must maintain social distancing of six-feet per person to the fullest extent possible.
- Laundry Services: This includes laundry service providers including dry cleaners and laundromats.
- Restaurants (Off–Premises Consumption): This includes restaurants, so long as food is provided via delivery, drive-through, curbside pick-up, and carryout.
- Supplies to Work From Home: This includes businesses that sell or manufacture or provide items that enable individuals to work from home.
- Supplies for Essential Businesses and Operations: This includes “[e]ntities that sell, manufacture or supply materials or services to “Essential Businesses and Operations” such as computers audio and video electronics, household appliances, IT and telecommunication equipment; hardware, paint, flat glass, electrical, plumbing and heating material; sanitary equipment; personal hygiene products; medical and orthopedic equipment,” among others.
- Transportation: This includes “[a]irlines, taxis, transportation network providers. . . , vehicle rental services, paratransit, marinas, docks, boat storage and other commercial transportation and logistics provides necessary for ‘Essential Activities’ and other purposes permitted under the Order.”
- Home–Based Care and Services: This includes any “[h]ome-based care for adults, seniors, children, and/or people with developmental or intellectual disabilities, substance abuse disorders and/or mental illness, including caregivers” and related in-home services such as meal delivery.
- Residential Facilities and Shelters: This includes “[r]esidential facilities and shelters for adults, seniors, children, and/or people with developmental or intellectual disabilities, substance abuse disorders and/or mental illness.”
- Professional Services: This includes “legal services, accounting services, insurance services, and real estate services (including appraisal and title services).”
- Manufacturing, Distribution and Supply Chain for Critical Products and Industries: This includes “Entities producing and supplying essential products and services in and for industries including healthcare, pharmaceutical, technology, biotechnology, chemicals and sanitization, agriculture, waste pickup and disposal, food and beverage, transportation, energy, steel and steel products, petroleum, fuel, mining, construction, national defense, communications and other products used by other ‘Essential Businesses and Operations.’”
- Critical Labor Union Functions: This includes “administration of health and welfare funds and personnel checking on the well-being and safety of members providing services for ‘Essential Businesses and Operations.’” However, if possible, labor union checks should be performed telephonically or remotely.
- Hotels and Motels: These businesses are included “to the extent used for lodging and delivery or carryout food services.”
- Funeral Services: This includes “[f]uneral, mortuary, cremation, burial, cemetery and related services.”
The order also includes as “Essential Business and Operations” any business listed on the March 19, 2020, U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) memorandum located at. These include businesses in the following industries: healthcare/public health, law enforcement, public safety, first responders, food and agriculture, energy, water and wastewater, transportation and logistics, public works, communications and information technology, community-based government operations, critical manufacturing, hazardous materials, chemical, defense (including the federal government and U.S. Military).
Public and Private Gatherings
The order prohibits public and private gatherings of more than 10 people, excluding those that occur within a single household or living unit. All places of public amusement, both indoors and outdoors, are closed. This includes amusement parks, water parks, aquariums, zoos, museums, children’s play centers, playgrounds, bowling alleys, movie and other theaters, concert and music halls, country clubs and social clubs.
Under the order, individuals may travel:
- to care for vulnerable persons including individuals who are disabled, elderly, dependents, or minors.
- to obtain materials for distance learning, meals, or any other related services from educational institutions.
- to return to an Indiana residence.
- if “required by law enforcement or court order, including to transport children pursuant to a custody agreement.”
- if necessary for an out-of-state resident to return to their home.
- “related to the provision of or access to ‘Essential Activities,’ ‘Essential Governmental Functions,’ ‘Essential Businesses and Operations,’ or ‘Minimum Basic Operations,’” as defined above.
Social Distancing Requirements
The order reiterates the requirements for social distancing, including at least six-feet of social distance from other individuals, handwashing for at least 20 seconds, use of hand sanitizer, covering coughs or sneezes, regularly cleaning high-touch surfaces, and refraining from shaking hands.
Businesses designated as “Essential Businesses and Operations, and “Minimum Basic Operations” must also, where possible.
- use signs, tape, or similar means to ensure six-feet of space between employees and customers in line.
- provide hand sanitizer and similar products to employees or customers.
- utilize different operating hours for elderly and vulnerable customers.
- provide online information regarding the businesses’ hours of operation and how to obtain the businesses products or services by phone or remotely.
In addition to the answers to stay-at-home order frequently asked questions (FAQs), , Indiana will open a call center to field industry questions about Executive Order 20-08. The Critical Industries Hotline opened on March 24, 2020, at 9 a.m. to help guide businesses and industries with the executive order. The call center may be reached by calling 877-820-0890 or by emailing firstname.lastname@example.org. The call center is for business and industry questions only.
Ogletree Deakins will continue to monitor and report on developments with respect to the 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.