Across North Carolina, municipalities have begun to issue “Shelter in Place” or “Stay at Home” Orders that require the closure of certain business and place restrictions on travel. So far, the state has not issued a lockdown directive, but Durham County, Madison County, Mecklenburg County, Pitt County, and the Town of Beaufort have all issued versions of a stay at home order with Wake County expected to announce one soon.
What does a shelter in place order mean for my business?
Under the terms of most shelter in place or stay at home orders, only businesses designated as essential are permitted to continue operations. If your business has been specifically designated as non-essential or does not fall into any of the defined essential categories, you may have to terminate business operations if they cannot comply with the terms of the stay at home order. This obviously has the potential to impact a huge number of employers across the state.
How do I know if my business is essential?
Most shelter in place orders issued within NC specifically exempt essential industries. Essential industries are permitted to operate while the stay at home order is in place. To define essential jobs, North Carolina counties and towns have generally relied on the guidance provided in the U.S. Department of Homeland Securities March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During coronavirus Response. As part of the Homeland Security memo, there are fourteen different industry categories defined as exempt. Each exempt category contains a number of specific examples of the types of job duties falling within that industry to help employers identify if they qualify.
In order to determine whether a particular job or business is exempt, employers or their attorney should first review the applicable shelter in place order. The language of the order or the reference to other authority defining essential job functions is important! Some types of employment are explicitly deemed non-essential under the language of some orders. However, most orders instead only describe essential job functions that are exempt and employers will need to determine whether they qualify. If you have questions about whether your business falls within the definition of essential, you should contact an attorney.
Some industries like hospitals, pharmacies, waste-water treatment, and specific public works obviously meet the definition of essential. However, the answer is less clear for some jobs like construction workers, building maintenance, landscaping operations, and certain retail stores. Dysart Willis Houchin & Hubbard can help you determine if and how you might be able to continue your business operations and keep your workers employed.
Can I get in trouble if I continue to operate my business?
Yes. If there is a valid shelter in place or stay at home order in effect, NCGS § 14-288.20A makes it a Class 2 misdemeanor criminal offense to violate the terms of the order. If you make the decision to keep your business open and operating normally, it is important that you ensure that you can demonstrate that you qualify as an essential industry. Seeking a legal opinion and having a lawyer that can provide legal justification why your business is exempt from a shelter at home order can help you defend a decision to keep your company working. Along with being able to continue with essential operations, a knowledgeable attorney may help you avoid criminal charges.
If you have questions about potential criminal exposure for operating your business or you have been charged by a law enforcement agency for violations of a shelter at home order, contact Dysart Willis Houchin & Hubbard immediately. Our attorneys are currently assisting a variety of employers with similar issues as they navigate this unprecedented pandemic.
How do I qualify as an essential industry?
Contact an attorney immediately. A lawyer can help identify the specific requirements in your location and determine whether your business operations meet the established criteria. Additionally, a lawyer can help advise whether modifications to your business model may help you meet important qualifications. Finally, a lawyer can help set up procedures so that if enforcement agencies come to your workplace or stop your employees there is a response plan ready to demonstrate the essential nature of your operations.
Many employees play a critical role in providing their communities and customers necessary services during the coronavirus (Covid-19) pandemic. If you have questions, the attorneys at Dysart Willis Houchin & Hubbard are available 24/7 to discuss how we can help.