Ohio Orders Citizens to "Stay at Home"
- Governor DeWine and State of Ohio officials announced a new “Stay and Home’ order that begins Tuesday, March 24th, 2020 and lasts until at least April 7th, 2020.
- Ohioans are permitted to leave home for a variety of reasons, such as health and safety, to obtain supplies and services, for outdoor activities, to take care of others or to perform essential jobs – like a grocery store clerk, food manufacturer, bank employee, journalist, attorney or first responder.
- When out of their homes, Ohioans must remain at least 6 feet away from each other.
- Ohio has also banned gatherings outside of a single household or living unit, as well as any gatherings of 10 or more people.
In an escalation of a series of increasingly restrictive orders amid the COVID-19 pandemic, Ohio Governor Mike DeWine announced that the State of Ohio would enact a “Stay at Home” order under the authority of Health Department Director Amy Acton.
In many respects, the order is very similar to other such orders enacted in States across the country. Ohio’s new order goes into effect on Monday, March 23, at 11:59 p.m. and remain in effect until at least April 6, which will put Ohioans in lockdown for at least two weeks. Many “non-essential” businesses are ordered closed, with a non-exhaustive list of “essential businesses” permitted to remain open. “Essential businesses” under the order include things such as grocery stores, gas stations, pharmacies, police and fire stations, and hospitals to remain open.
The order requires that, with certain exceptions, “all individuals currently living within the State of Ohio are ordered to stay at home or at their place of residence.”
Exceptions to the Order
The order contains a variety of exceptions to its’ provisions, mainly focused on critical infrastructure and those services vital for public safety and wellbeing. These include the following excepted business and services:
On March 19, 2020, the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA), issued a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response. The definition of Essential Businesses and Operations in this Order includes all the workers identified in that Memorandum.
Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, prepared food, alcoholic and nonalcoholic beverages, any other household consumer products (such as cleaning and personal care products), and specifically includes their supply chain and administrative supply operations. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities;
Newspapers, television, radio, and other media services;
Religious facilities, entities and groups and religious gatherings, including weddings and funerals.
While not specifically defined in the order, the inclusion of this is both interesting and vitally important. Any restraint on the First Amendment comes with a high presumption against its’ validity. This is crafted to respect that.
Gas stations and auto supply, autorepair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities
Bank, currency exchanges, consumer lenders, including but not limited, to pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, payday lenders, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products. Also insurance companies, underwriters, agents, brokers, and related insurance claims and agency services;
Hardware stores and businesses that sell electrical, plumbing, and heating material;
Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, exte1minators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations;
Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods, vehicles or services to end users or through commercial channels;
Educational institutions-including public and private pre-K-12 schools, colleges, and universities-for purposes of facilitating distance learning, performing critical research, or perfo1ming essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible. This Order is consistent with and does not amend or supersede prior Orders regarding the closure of schools;
Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delive1y, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not pe1mit the food to be eaten at the site where it is provided, or at any other gathering site due to the virus’s propensity to physically impact surfaces and personal property. This Order is consistent with and does not amend or supersede prior Orders regarding the closure of restaurants;
Businesses that sell, manufacture, or supply products needed for people to work from home;
Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, marinas, docks, boat storage, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in this Order;
Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
Residential facilities and shelters for adults, seniors, children, pets, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, communications, as well as products used by other Essential Businesses and Operations.
Labor Union essential activities including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in Essential Businesses and Operations – provided that these checks should be done by telephone or remotely where possible.
Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
Funeral, mortuary, cremation, burial, cemetery, and related services.
Minimum Basic Requirements
For those business that are exempt from the order, it does instate certain specific minimum requirements governing the business operations . These include:
- Social distancing requirements of at least 6 feet; and
- Only engaging in the minimum necessary activities to maintain the value of the business’ inventory, preserve the condition of the business’ physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions; and
- Only engaging in minimum necessary activities to facilitate employees of the business to be able to work from home.
- Having hand sanitizer and sanitizing products readily available for employees and customers;
- Implementing separate operating hours for elderly and vulnerable customers; and
- Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
Under the Stay at Home order, Ohioans are instructed to avoid all travel that is “non-essential.” Anyone that is engaging in “essential” travel are ordered to maintain social distancing. Travel is deems essential if it falls under one of the following criteria:
- Any travel related to the provision of or access to Essential Activities, Essential Governmental Functions, Essential Businesses and Operations, or Minimum Basic Operations.
- Travel to care for elderly, minors, dependents, persons with disabilities, or other vulnerable persons.
- Travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services.
- Travel to return to a place of residence from outside the jurisdiction.
- Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement
- Travel required for non-residents to return to their place of residence outside the State. Individuals are strongly encouraged to verify that their transportation out of the State remains available and functional prior to commencing such travel.
Advice for Businesses
The order states that employers are to take the following specific actions:
- Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
- Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
- Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
- Reinforce key messages – stay home when sick, use cough and sneeze etiquette, and practice hand hygiene – to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
- Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
The order specifically states that, with respect to enforcement:
This Order may be enforced by State and local law enforcement to the extent set forth in Ohio law. To the extent any public official enforcing this Order has questions regarding what services are prohibited under this Order, the Director of Health hereby delegates to local health departments the authority to answer questions in writing and consistent with this Order.
While the Governor expressed a preference to avoid police enforcement, the law certainly provides for the possibility of police intervention. Remember that, in times like this, the barrier for “probable cause” is exceeding low. In theory, a police officer can stop you merely because you are outside during the order to inquire as for the reason. While this may not occur, it is wise to be mindful that under the circumstances, the constitutional protections that give you privacy from police intervention may be greatly reduced. For example, how will the government enforce the “no more than 10 people gathering” prohibition? Does this give the police the right to enter a home without a warrant? In practice, this order creates more questions than answers in this regard.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan
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