UPDATE: On April 8, 2020, Governor Brian Kemp signed an Executive Order extending the statewide shelter in place mandate through April 30, 2020. The Order also extended a provision that allows State law enforcement and county sheriffs and their deputies to enforce the mandate. The Governor signed additional orders imposing new requirements on nursing homes and long-term care facilities and suspending short-term vacation rentals across the state.

In response to the COVID-19 outbreak, over thirty-five states have issued executive orders requiring citizens to stay home and shuttering non-essential businesses. (Check out Nelson Mullins’ prior coverage of these orders here.) On April 2, Georgia became the next state to take that step as Governor Brian Kemp signed a sweeping order limiting personal and business activities across the state.

Governor Kemp’s Order mandates that Georgians “shelter in place.” Although Kemp had already closed schools, banned gatherings of ten or more people, shut down bars and nightclubs, and ordered people in fragile health to stay home, he had stopped short of issuing a statewide stay at home order. In a press conference announcing the Order, Kemp stated that recent data shows that Georgia hospitals will reach capacity in as little as three weeks, and it was crucial for residents to remain at their places of residence.

Taking effect on Friday, April 3, at 6PM, and remaining in force through Monday, April 13, Executive Order 04.02.20.01 requires certain businesses to close and all residents and visitors to the state to remain in their places of residence unless such persons are:

1. Participating in Essential Services;
2. Working for a Critical Infrastructure business or entity; or
3. Engaged in Minimum Basic Operations for another business or organization.

This alert details these exceptions to the shelter in place order, including what businesses comprise Critical Infrastructure and what constitutes Minimum Basic Operations for any other business. It also identifies measures that businesses and other entities must take to mitigate the exposure and spread of COVID-19 to employees and the public and which businesses must cease all operations and close to the public. Readers should note that this Executive Order purports to supersede all other emergency orders adopted by counties and cities in the state of Georgia in response to the COVID-19 crisis.

Individuals May Engage in Essential Services

Individuals may leave their places of residence to participate in Essential Services defined in the Executive Order, which include:

• Obtaining necessary supplies and services for family or household members, including food, medical products, and other household goods;
• Seeking medical, behavioral health, or emergency services;
• Outdoor exercise, provided six foot social distancing is maintained; and
• Travel necessary to participate in Essential Services or to work in Critical Infrastructure businesses or Minimum Basic Operations for other businesses.  

Critical Infrastructure Businesses and Entities May Continue Operations

Businesses and entities that provide Critical Infrastructure may maintain operations (and staff may report) under the Executive Order. The Order defines Critical Infrastructure by importing the definition of “essential critical infrastructure workforce” in recent guidance issued by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency. The industries identified by this guidance include, but are not limited to:

• healthcare;
• law enforcement and public safety;
• food and agriculture;
• energy;
• water and wastewater;
• transportation and logistics;
• public works;
• communications and information technology;
• manufacturing, financial services; and
• residential services.

The DHS guidance provides a detailed list that covers many occupations and professions. The Order also specifically provides that legal services, home hospice, and nonprofit organizations that offer food distribution or other health or mental health services are Critical Infrastructure. Businesses designated as Critical Infrastructure are still subject to the mitigation requirements detailed below.

Any Business May Maintain Minimum Basic Operations

The Executive Order also allows any business and its employees to conduct the “minimum necessary activities to maintain the value” of the business, as well as the minimum necessary activities to provide services, manage inventory, ensure security, process payroll and employee benefits, and facilitate other employees’ ability to work remotely and patrons’ ability to participate remotely. Such minimum necessary activities include remaining open to the public subject to the restrictions of the Order. Businesses where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services can continue operations. These Minimum Basic Operations must be conducted subject to the mitigation requirements detailed below.

Businesses and Entities Must Make Mitigation Efforts

Even businesses, operations, and activities exempted under Governor Kemp’s order (with exception of Critical Infrastructure) are subject to a social distancing requirement—no business, establishment, corporation, nonprofit corporation, organization, or county or municipal government may allow more than 10 persons to gather in a single location unless they remain at least six feet apart.

In addition, businesses and entities (whether Critical Infrastructure or otherwise maintaining Minimum Basic Operations) must implement measures to mitigate the exposure to and spread of COVID-19, including:

• Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
• Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
• Enhancing sanitation of the workplace;
• Requiring hand washing or sanitation by workers;
• Providing personal protective equipment as available and appropriate;
• Prohibiting gatherings of workers during working hours;
• Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
• Implementing teleworking for all possible workers;
• Implementing staggered shifts for all possible workers;
• Holding all meetings and conferences virtually, wherever possible;
• Delivering intangible services remotely wherever possible;
• Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
• Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
• Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
• Suspending the use of Personal Identification Number (”PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent that suspension is permitted by agreements with credit card companies and credit agencies;
• Enforcing social distancing of non-cohabitating persons while present on property;
• For retailers and service providers, providing for alternative points of sale outside buildings, including curbside pick-up or delivery of products or services if an alternative point of sale is permitted under Georgia law;
• Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;

Certain Businesses Must Close to Public

Under the Executive Order, these businesses and persons must cease operations and close to the public:

• Bars;
• Beauty salons and barber shops;
• Body art studios;
• Bowling alleys;
• Estheticians and hair designers;
• Gyms and fitness centers;
• Massage therapists;
• Operators of amusement rides; and
• Theaters and live performance venues.

The Executive Order empowers the Department of Public Health, Department of Public Safety, and Georgia Emergency Management and Homeland Security Agency to enforce the closures and restrictions placed on businesses by the Order. It also provides that any person who violates the Order will be guilty of a misdemeanor, although officials enforcing the Order are directed to take reasonable steps to ensure notice prior to citation or arrest. 

Determining Whether Your Business is Critical Infrastructure

The Executive Order authorizes the Department of Economic Development to provide individual  businesses guidance as to their status as Critical Infrastructure. This guidance, if sought, will constitute a final agency action under the Georgia Administrative Procedure Act, and aggrieved parties may seek judicial review.

How Nelson Mullins Can Help

Business owners can be proactive by engaging Nelson Mullins to evaluate whether the Executive Order requires you to close your business or alter your operations. We can also help you seek clarification from the Georgia Department of Economic Development and other State entities about your business’s status as Critical Infrastructure and the effect of the Order on your activities.

If you have any questions or would like assistance in navigating your business’s response to COVID-19 orders, please contact Stan Jones, George Ray, Lucas Westby, or Kelly Whitehart. Additional resources about COVID-19 are available at https://www.nelsonmullins.com/coronavirus-resources. 

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