Governor John Carney issued his Forth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat, pursuant to which he has ordered the closure of non-essential business and commercial establishments in the state of Delaware (the \u201cNon-Essential Business Closure Order\u201d).<\/p>\n
The order takes effect on Tuesday, March 24, 2002, at 8:00 a.m. and remains in effect \u201cuntil after May 15, 2020, or the public health threat of COVID-19 has been eliminated . . . .\u201d Violations of the Non-Essential Business Closure Order constitute a criminal offense.<\/p>\n
While \u201cEssential Businesses\u201d\u2014as defined in the Governor\u2019s Order and highlighted below\u2014may continue to operate, such businesses must continue to comply with certain health-protecting guidelines and measures promulgated by the Centers for Disease Control and Prevention (\u201cCDC\u201d) or the Delaware Department of Health and Social Services\u2019 Division of Public Health (\u201cDPH\u201d).<\/p>\n
Among the measures Essential Businesses are required to observe while they remain open for employees and customers are the following: (a) implementing flexible and non-punitive sick-leave policies; (b) excluding employees who are actively exhibiting signs of illness or have had close contact with persons diagnosed with, or suspected of having COVID-19; and (c) the adoption and encouragement of certain personal hygiene and property sanitizing practices.<\/p>\n
The Non-Essential Business Closure Order, appears to be fairly liberal in adopting Delaware\u2019s definition of what businesses or industries are considered Essential Businesses. To that end, businesses that employ or utilize workers in the following general areas are considered \u201cEssential Businesses\u201d and may remain operational to provide functions critical to the day-to-day needs of Delaware\u2019s citizens:<\/p>\n
\u2022 Healthcare\/Public Health: Not surprisingly, the list of workers related to the Healthcare\/Public Health industry is quite broad and not only includes those persons directly responsible for providing healthcare services, but also workers and businesses that are critical to the support of such healthcare functions.<\/p>\n
\u2022 Law Enforcement, Public Safety, First Responders<\/p>\n
\u2022 Food and Agriculture: Here, too, the list of essential functions broadly captures a wide swath of the food and agriculture segment to ensure that this critical industry remains functional. Thus, the directive generally declares as essential workers and businesses critical to the production of, distribution of, and the sale of food and beverage products not only for human consumption, but also for pets and livestock.<\/p>\n
\u2022 Energy: This industrial category is broken down into the following sub-categories: (a) Electricity Industry; (b) Petroleum Industry (including transport, storage, refining, distribution, and sales); and (c) Natural Gas and Propane.<\/p>\n
\u2022 Water and Wastewater<\/p>\n
\u2022 Transportation and Logistics: This category broadly covers persons and businesses needed to move goods and services, as well as to maintain the assets used in transportation and logistics activities.<\/p>\n
\u2022 Public Works<\/p>\n
\u2022 Communications and Information Technology<\/p>\n
\u2022 Other Community-Based Government Operations and Essential Functions: This category covers workers such as: (a) election personnel; (b) weather forecasters; (c) educators; and (d) hotel workers, among others.<\/p>\n
\u2022 Manufacturing: This category broadly encompasses: \u201cWorkers necessary for the manufacturing of materials, goods, products, or similar distribution.\u201d<\/p>\n
\u2022 Hazardous Materials<\/p>\n
\u2022 Financial Services and Insurance<\/p>\n
\u2022 Chemical<\/p>\n
\u2022 Defense Industrial Base<\/p>\n
\u2022 Construction: This category includes both the persons engaging in the construction and repair of residential and non-residential structures and the businesses that supply materials and hardware to those trades.<\/p>\n
\u2022 Necessary Products Retailers: This category lists a number of \u201cNecessary Products\u201d that include: (a) medical and hygiene supplies, (b) dry goods; (c) agricultural supplies; (d) pet and animal food supplies; (e) hardware; (f) products and equipment needed to work from home; (g) alcohol, beer and wine; and (h) \u201cany other household consumer products or other products necessary to maintain the safety, sanitation, and essential operations of residences.\u201d<\/p>\n
\u2022 Necessary Retail and Service Establishments: This category lists twenty-six types of Necessary Retail and Service Establishments that include: (a) businesses that sell to or supply such businesses; (b) plumbers, electricians, exterminators, etc.; (c) lawn and garden retail facilities; (d) marinas; (e) childcare facilities; (f) professional services such a legal and accounting; (g) hotels and taxis; and (h) pet sitters.<\/p>\n
\u2022 Open Air Recreation Facilities<\/p>\n
The Non-Essential Business Closure Order also contains a list of types of businesses that are considered \u201cNon-Essential Businesses,\u201d which includes places such as casinos, racetracks, sporting facilities, theaters and concert halls, among others. This list appears to cover a number of facilities in which large numbers of people might ordinarily gather together.<\/p>\n
To determine the specific status of a specific type of business or worker, the State of Delaware has published an industry status list, in which the industries named above are broken down into their 4-digit North American Industry Classification System (NAICS) code. The industry classification list states\u2014by code number\u2014which types of businesses may or may not operate (or operate with certain listed restrictions) during the time the order is in force. Moreover, in a set of FAQ published by the State, it is noted that if a business has more than one NAICS code, \u201c[y]ou may follow the instructions for the least restrictive NAICS code your business is classified under.\u201d<\/p>\n
CONCLUSION<\/p>\n
Delaware\u2019s Non-Essential Business Closure Order appears to broadly define Essential Businesses in a manner that will allow many aspects of Delaware\u2019s manufacturing, commercial and business or landscape to continue to operate, and therefore, to afford Delaware\u2019s citizens the most normal day-to-day life possible in these challenging circumstances and secure in their knowledge that essential aspects of daily lives will not be unnecessarily restricted.<\/p>\n
If you have questions regarding how the Non-Essential Business Closure Order might affect your business, the lawyers of Duane Morris, LLP, have had in place a COVID-19 rapid response team for several weeks now and are ready to assist with your legal needs. Information about Duane Morris\u2019 capabilities may be found at www.duanemorris.com.<\/p>\n
Feel free to email us as well if easier – bamolotsky@duanemorris.com; slcaffrey@duanemorris.com; dcanderson@duanemorris.com; jsegal@duanemorris.com and we will direct your inquiry accordingly.<\/p>\n
Be Safe.<\/p>\n","protected":false},"excerpt":{"rendered":"
Governor John Carney issued his Forth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat, pursuant to which he has ordered the closure of non-essential business and commercial establishments in the state of Delaware (the \u201cNon-Essential Business Closure Order\u201d). The order takes effect on … <\/p>\n