As virtually all Ohio residents and business owners know, Dr. Amy Acton, the Director of Ohio’s Department of Health, issued a “Stay at Home Order” on March 22, 2020, and issued an amended and extended Stay at Home Order through May 1, 2020, on April 2, 2020.
Dr. Acton’s Order requires “all businesses and operations” in Ohio to cease all activities except “Minimum Basic Operations” unless the business activities consist only of employees working from home. The Order permits “Essential Businesses and Operations” to continue – with requirements relating to social distancing to protect employees and patrons.
The Order prompted many of us to ask: (1) What are “essential” businesses and operations? (2) Does the Director of Ohio’s Department of Health really have the authority to do this? and (3) What happens to my business if Ohio disagrees with me about whether it’s essential?
Dr. Acton tried to answer the first question within her initial Order. Among other explanations, Dr. Acton’s Order incorporated the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Agency (CISA) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued on March 19, 2020. The definition of an essential business is broad, open to interpretation, and may be determined on a case-by-case basis.
And, yes, under law passed in 2004, the Director of the Department of Health has the authority to issue these orders pursuant to Ohio Revised Code Section 3701.13 because the Department of Health has supervision “of all matters relating to the preservation of the life and health of the people” of Ohio and has the “ultimate authority in matters of quarantine and isolation.” Dr. Acton is entrusted with the authority to issue special or standing orders or rules “for preventing the spread of contagious or infectious diseases.” Investigating the causes of a pandemic and taking prompt action to control and suppress it became a statutory requirement for Ohio’s Director of Health back in 2004.
When Ohio’s Director of Health issues an order to prevent threats to Ohio’s public from a pandemic, epidemic, or bioterrorism event, failing to follow the order (i.e., violating R.C. 3701.352) is a crime that is punishable as a second-degree misdemeanor (up to $750.00 fine/90 days in jail).
Who enforces the Orders? As one would expect, local law enforcement officers (i.e. police and sheriffs) can issue citations for violations. Ohio’s Attorney General also has enforcement power and has created a hotline for Ohioans to report businesses that are believed to be violating the Orders [www.OhioProtects.org]. The Ohio Attorney General sent written requests for information about compliance to at least a handful of large organizations and is sharing resources with law enforcement in the form of sample documents (including examples of motions and court orders shutting down businesses).
Boards of health (general or city health districts) also can enforce quarantine or isolation orders and have authority to order a business to close. The Dayton & Montgomery County Department of Public Health, for example, sent more than 360 letters relating to compliance with Dr. Acton’s Order to business activities located within Montgomery County by April 1, 2020. Site visits were already underway at that point, and closure orders started effective April 3, 2020.
Local health boards activities and investigations are not confidential. The Dayton & Montgomery County Department of Public Health listed over 100 local businesses under investigation – by name – and had ordered more than a dozen local businesses to close as of April 10, 2020. Franklin County opened 579 cases and had closed 487 of them by April 8, 2020. Early cases involved restaurants and bars that remained open in violation of the Order.
Enforcement is now focused on responding to complaints: non-essential businesses operating, failure to observe social distancing, providing personal protective equipment, making handwashing essentials available, and failure to sanitize high touch surfaces. Given the many arguments that a given business or part of its operations may qualify as essential, early feedback from the Ohio Attorney General’s office suggested focusing on the requirements for operating safely and following all of the guidance for safe operations, including the recently updated guidelines from Dr. Acton’s Second Order.
We are all hopeful Dr. Acton will not extend the stay-at-home requirements again and that we only have a little more than two weeks before beginning the first steps toward normalcy. However, the reality is life will not immediately return to normal. There will continue to be some uncertainty about what is an essential business. Even for businesses that qualify as essential, certain operations and aspects could be determined to be non-essential, and business owners should plan to cease such operations or prepare arguments for their necessity in response to potential scrutiny.
The best practices for any business that is currently operating or hoping to re-open on May 2nd will require demonstrating safe operation for employees and patrons: create and strictly enforce procedures that demonstrate real social distancing, repeatedly sanitize high-touch surfaces, make PPE available, and use the PPE.
Contibuting attorneys:
Daniel J. Gentry
Christopher R. Conard
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