There are few issues more pressing right now than whether or not your business is essential. Likely, you believe your business is essential. There is little the government can tell you to make you believe otherwise. Regardless, various governments and regulatory agencies have issued orders that determine whether or not your business is essential.
This issue continues to be a moving target. This is because the rules evolve based on beliefs about the danger to public health caused by Covid-19.
As you would suspect, the Federal Government has significant influence on this issue. Its agencies weild this influence by issuing guidance about this and other related issues. In order to enforce its positions, Attorney General Barr can enlist federal prosecutors. Recently, he asked they “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”
The Cybersecurity and Infrastructure Security Agency (CISA) executes the Secretary of Homeland Security’s authorities to secure critical infrastructure. So, it was responsible for issuing the Federal Government’s “Essential Critical Infrastructure Workforce” advisory list. The list is “advisory in nature,” and is not a federal directive or standard. The list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions.
As a result, some jurisdictions are relying solely on the CISA list, some are modifying it, and some are just making their own list of necessary businesses. Moreover, because of the overlap between jurisdictions you may have to review multiple sets of rules to determine your status.
Outside of areas hit hardest by COVID-19 such as New York City, Los Angeles, and Washington, St. Louis County provides one of the most interesting examples. This is becasue the St. Louis County Department of Public Health’s “Stay at Home Order” is indefinite.
State of Missouri
On April 3, 2020, the Missouri Director of the Department of Health and Senior Services and Governor Michael Parson issued the statewide “Stay Home Missouri” Order which extends through May 3, 2020. The Order requires that individuals within Missouri shall “avoid leaving their homes or places of residence unless necessary.”
The Order limits social gatherings to 10 people unless the people are performing essential work. The exception for essential work relies on the definition of “Essential Critical Infrastructure Workers” provided by the CISA.
The CISA Advisory List identifies workers who conduct a range of operations and services that are typically essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions, among others.
It also includes workers who support crucial supply chains and enable functions for critical infrastructure. The industries they support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, finance, energy, water and wastewater, law enforcement, and public works. A complete list of businesses and workers can be found HERE.
St. Louis County
Prior to the Missouri Stay Home Order, on March 23, 2020, the St. Louis County Department of Public Health issued its “Stay at Home Order.” Ignoring constitutional implications that might be addressed by Attorney General Barr, this Order is theoretically indefinite.
The County Order provides a similar exception to the Missouri Order for “Essential Businesses.” However, the County Order’s exception does not follow the CISA Advisory List. Instead, the St. Louis County Department of Public Health created its own list of essential businesses.
The County Order further states that “Essential Businesses may continue necessary activities so long as they comply to the maximum extent possible, with Social Distancing Requirements for both employees and members of the public, including but not limited to, customers standing in line.
If your business is unfortunately located within a county like St. Louis County, your business might not be able to open up indefinitely
Regulatory Agencies like FINRA or the ADA
Your business might be subhect to rulatory agencies such as FINRA or the ADA. In addition the state and local government orders, it will be imporatn to reciew whether or not the regulatory agency has provided any additional guidance about whether its member firms are essential.
Regarding this issue, FINRA defers to state and local governments, explaining that: “a growing number of states and localities have issued workplace restrictions as part of their efforts to prevent the spread of the disease. These ‘shelter-in-place’ or ‘stay-at-home’ orders vary in scope and duration, but generally require businesses not considered ‘essential’ to close their physical offices and continue their operations remotely. Many of the orders list financial institutions as essential businesses and permit critical on-site functions to continue, subject to limitations. Member firms should closely review the applicable state and locality orders’ impacts on their operations and make any necessary changes.”
This issue will continue to be a moving target for some time.