As of 8:00 p.m. on March 30, 2020, Governor Hogan's state-wide stay at home order was put in place, further impacting the employees, operations, and resources of businesses across the state of Maryland.
General Business Exceptions to the Order
Although the stay at home order explicitly requires individuals living in the state of Maryland to remain in their homes or places of residence, the order allows the owners or employees of Maryland businesses to leave their homes if they are engaged in any of the following activities:
- Traveling between home and a business that has not been ordered to close or to and from customers for the purpose of delivering goods or performing services.
- Traveling between home and a "non-essential business" for the purpose of engaging in "minimal operations" or to and from customers for the purpose of delivering goods.
Exceptions for Minimal Operations of Non-Essential Businesses
Generally, "non-essential businesses" are those entities not categorized as operating in the following sectors: chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government facilities; healthcare and public health; information technology; nuclear reactors, materials and waste; transportation systems; and water and wastewater systems.
Previous interpretive guidance from the Maryland Office of Legal Counsel (the OLC) provides a non-exhaustive list of the types of businesses that are permitted to stay open. For example, pursuant to the Interpretive Guidance from the OLC dated March 23, 2020, law firms are considered to be within the government facilities sector and are allowed to remain open. The OLC's March 23 Interpretive Guidance can be read in its entirety at https://governor.maryland.gov/wp-content/uploads/2020/03/OLC-Interpretive-Guidance-COVID19-04.pdf.
Under the order, owners and staff of "non-essential businesses" may remain on-site for the following purposes, what the order refers to as "minimal operations":
- Facilitate remote working by other staff
- Maintain essential property of the business
- Prevent the loss of or damage to property (including the spoilage of perishable inventory)
- Perform essential administrative functions (including picking up mail and processing payroll)
- Care for live animals
- In the case of retail establishments, continue to sell retail products on a delivery basis
The order continues to mandate the closure of many specific business types, including senior centers, restaurants and bars (takeout still permitted), fitness centers, theaters, malls that have one or more enclosed pedestrian concourses, and other recreational establishments, including, among others, bingo halls, bowling alleys, pool halls, amusement parks, roller- and ice-skating rinks, and golf courses.
Additionally, tattoo parlors, tanning salons, barber shops, and beauty salons remain closed to the public.
Unlike Governor Hogan's previous executive orders related to COVID-19, a violator of the new stay at home order can be charged with a misdemeanor crime and be subject to up to one year of imprisonment or a fine of up to $5,000, or both.
To demonstrate that their employees are in compliance with Executive Order Number 20-03-30-01 (the stay at home order), we suggest that essential businesses provide their employees with a Letter of Authorization, on company letterhead, stating that the individual who is traveling is an employee of the business, that the business is one that is not required to close pursuant to paragraphs IV and V of the order, and that the individual's travel is work-related. Likewise, we suggest that non-essential businesses provide similar Letters of Authorization to their employees stating that, pursuant to paragraph IV of the order, they are employees of a non-essential business and that they are traveling to engage in "minimal operations," as defined in paragraph IV.c of the order. We suggest that employees keep these Letters of Authorization with them so that they may be presented to law enforcement officials if employees are questioned about why they are traveling.
We remain available to answer any questions you may have regarding state and federal responses to the COVID-19 pandemic, including whether a particular business is viewed as essential and whether certain work tasks qualify as minimal operations under the stay at home order, as well questions concerning SBA loans and other sources of funding available to Maryland businesses through the federal stimulus package.
To read the stay at home order in its entirety, please visit https://governor.maryland.gov/wp-content/uploads/2020/03/Gatherings-FOURTH-AMENDED-3.30.20.pdf.
For more information regarding "essential businesses," see the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency's guidance, "Identifying Critical Infrastructure During COVID-19," available at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.
As our clients across the state of Maryland continue to grapple with the economic effects of the COVID-19 pandemic – the shuttering of non-essential businesses, loss of revenue, creeping illiquidity, and the many difficult decisions that lie ahead – the lawyers at Venable remain dedicated to serving Maryland businesses through this difficult period, offering guidance and support as we collectively navigate these challenges.