Within the past week, California, Connecticut, Delaware, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Maryland, Michigan, New Jersey, New York, Ohio, and Pennsylvania have each prohibited all “non-essential” public and private employees from commuting to work as a result of COVID-19. With rumors and speculation mounting that many other states may soon follow suit, employers throughout the country will need to determine which of their employees, if any, qualify for each state’s unique exemptions on employee travel.
For many businesses, this means that they must determine whether they operate within the varying definitions of essential services. As provided below, both the federal government and all noted states have issued guidance on what constitutes essential services in their jurisdiction. California and Louisiana have deferred to the federal government’s publications on essential critical infrastructure, while Delaware, Kentucky, Massachusetts, New Jersey, New York, and Pennsylvania have provided their own lists. Connecticut, Illinois, Indiana, Maryland, Michigan, and Ohio have all incorporated the federal guidelines and provided their own lists.
It is important to note further that, as of the date of this publication, the federal guidelines are in no way binding on the states, and are only there to provide guidance to states and municipalities. The federal government has likely issued these guidelines, rather than a sweeping national standard, both out of deference to the “police powers” afforded to states under the Constitution, as well as an understanding that individual states are more properly suited to assess their unique needs. Nevertheless, there have been calls, including by the U.S. Chamber of Commerce, urging states and municipalities to issue uniform standards based on the instituted federal guidelines.
For some businesses, the determination of whether they are an essential service will be a straight-forward determination; for many others, it will be a matter of interpretation. Many businesses are also asking then whether there is a method by which they can be precleared as an essential or critical service. At this point, Massachusetts and New York have offered businesses the ability to request a designation or opinion, respectively, on whether they are an essential service; however, these are optional and are not required of all businesses. It is unlikely that any state would have the capacity required to preclear all essential businesses, and therefore is an unlikely measure for a state to take.
Instead, businesses must determine—based on the guidance provided at the federal level and any associated restrictions at the state or local level—whether they have a reasonable belief that their business is providing an exempted service to society.
For a copy of the federal memo, click here.
For more guidance on the federal memo and its interpretation, click here.
For a copy of the California order, click here.
For a copy of the Connecticut order, click here.
For a list of “essential businesses” in Connecticut, click here.
For a copy of the Delaware order, click here.
For a copy of the Illinois order, click here.
For a copy of the Indiana order, click here.
For a copy of the Kentucky order, click here.
For a copy of the Louisiana order, click here.
For a copy of the Massachusetts order, click here.
For a list of “COVID-19 Essential Services” in Massachusetts, click here.
For a copy of the Michigan order, click here.
For a copy of the New Jersey order, click here.
For a copy of the Ohio order, click here.
Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.
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