The Effect of Ohio’s Stay at Home Order on Ohio Employers

On March 22, 2020, Governor Mike DeWine announced that Dr. Amy Acton, the director of the Ohio Department of Health, signed a “Stay at Home Order” effective Monday, March 23, 2020 at 11:59 p.m. through April 6, 2020. The Order is available in full here: Stay At Home Order. The Order includes a number of restrictions on gatherings, travel, and business activities. Regarding business operations, the Order provides:

All businesses and operations in the State, except Essential Businesses and Operations as defined below, are required to cease all activities within the State except Minimum Basic Operations, as defined below. For clarity, businesses, including home-based businesses, may also continue operations consisting exclusively of employees or contractors performing activities at their own residencies (i.e., work from home).

Businesses covered by the Order include all for-profit, non-profit, or educational entities. The Essential Businesses and Operations exempt from the Order’s requirement to cease all activities include the following categories:

1. Health care and public health operations;
2. Human services operations;
3. Essential governmental functions;
4. Essential infrastructure;
5. CISA list; [1]
6. Stores that sell groceries and medicine;
7. Food, beverage, and licensed marijuana production and agriculture;
8. Organizations that provide charitable and social services;
9. Religious entities;
10. Media;
11. First Amendment protected speech;
12. Gas stations and businesses needed for transportation;
13. Financial and insurance institutions;
14. Hardware and supply stores;
15. Critical trades;
16. Mail, post, shipping, logistics, delivery, and pick-up services;
17. Educational institutions;
18. Laundry services;
19. Restaurants for consumption off-premises;
20. Supplies to work from home;
21. Supplies for Essential Businesses and Operations;
22. Transportation;
23. Home-based care and services;
24. Residential facilities and shelters;
25. Professional services;
26. Manufacture, distribution, and supply chain for critical products and industries;
27. Critical labor union functions;
28. Hotels and motels; and
29. Funeral services.

The Order provides additional clarification regarding each of the above-listed Essential Businesses and Operations.

Apart from the listed Essential Businesses and Operations, the Order also allows for any business to continue Minimum Basic Operations, defined as (a) “The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions;” and (b) “The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from the residences.”

Regardless of whether a business is continuing operations as exempted by the Essential Businesses and Operations provision or if the business is only continuing Minimum Basic Operations, every business must comply with the Order’s Social Distancing Requirements. This provision requires businesses to take proactive measures to ensure compliance with Social Distancing Requirements, “including where possible” the following:

1. Designate six-foot distances. Designating with signage tape or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
2. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
3. Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
4. Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.

Further, the Order sets forth the following additional requirements related to employer policies and practices in response to COVID-19:

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 any 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, or temporarily suspend some of your operations).

This Order has a far-reaching impact for businesses across Ohio. For advice regarding how this Order affects your business operations, please contact your Dinsmore labor attorney.