As More States Go Into Lockdown: What Makes a Business "Essential"

3 min

In response to the pandemic, states across the U.S. are beginning to take more drastic action to "flatten the curve." Recently imposed orders in California, Connecticut, Pennsylvania, New York, Illinois, and Ohio are requiring, among other things, "non-essential businesses" to close all in-person operations. The overriding requirement is to reduce in-person contact by 100%. Note that local governments across the country, including but not limited to the City of Los Angeles, some counties in the California Bay Area, and Orange County, California have also issued their own similar orders.

The orders have caused employers to question what "essential" means in their jurisdiction. Below are some key aspects of the federal, California, and New York definitions of "essential" that employers should consider.

FEDERAL

On March 16, 2020, President Trump issued updated Coronavirus Guidance for America, which provides that "[i]f you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule." In accordance with this guidance, the Cybersecurity and Infrastructure Security Agency (CISA) released a list of 16 Essential Critical Infrastructure sectors "who conduct a range of operations and services that are essential to continued critical infrastructure viability." This list is not binding on states but is intended to provide guidance for state officials when determining which businesses are "essential."

CALIFORNIA

On March 19, 2020, Governor Newsom issued the "Safer at Home" order requiring all individuals to stay home or at their place of residence, except those needed to maintain continuity of operations of the federal essential critical infrastructure sectors, critical government services, schools, childcare, and construction, including housing construction.

In addition to California's list of Essential Critical Infrastructure Workers, which mirrors almost exactly the Federal Essential Critical Infrastructure list, "essential services" in California include, among others, Gas Stations; Pharmacies; Food: Grocery Stores, Farmers Markets, Food Banks, Convenience Stores, Take-out and Delivery Restaurants; Banks; Laundromats/Laundry Services; and Essential State and Local Government Functions, including law enforcement and offices that provide government programs and services.

NEW YORK

On March 20, 2020, Governor Cuomo issued the "New York State on PAUSE" order, which includes a new directive that all non-essential businesses statewide must close in-office personnel functions effective at 8 p.m. on Sunday, March 22.

Unlike California, New York's list does not mirror the federal one as closely. The 12 categories of "essential businesses" in New York are Essential Health Care Operations; Essential Infrastructure; Essential Manufacturing; Essential Retail; Essential Services; News Media; Financial Institutions; Providers of Basic Necessities to Economically Disadvantaged Populations; Construction; Defense; and Essential Services Necessary to Maintain the Safety, Sanitation and Essential Operations of Residences or Other Essential Business.

The guidance issued by the New York State Department of Economic Development provides more specific examples of "essential businesses" within each category.

A compilation of state-by-state actions is accessible at https://web.csg.org/covid19/executive-orders/. Please check for updates daily and contact your advisor regarding your specific facts and circumstances.

Please contact any member of Venable's Labor and Employment team with any questions you may have. 

Thank you to Sarah Fucci, a first-year associate in Venable’s labor and employment group, for her contributions to this article.