On Thursday, April 2, 2020, Governor Kemp issued an Executive Order for the State of Georgia requiring all residents and visitors to remain in their residences, subject to certain exceptions for essential personal needs and permitted work functions. This update examines the Executive Order and the effect on individuals and business operations, including certain real estate services.
General Rule: Stay at Home
Governor Kemp’s Executive Order (the Order) requires residents and visitors of Georgia to stay in their residences except when performing certain permitted activities. Permitted activities include “Essential Services,” engaging in work that is “Critical Infrastructure” or “Minimum Basic Operations,” and performing travel necessary to accomplish the foregoing. The Order went into effect at 6:00 p.m. this evening, Friday, April 3, and remains effective until 11:59 p.m. on Monday, April 13, 2020. The Order supersedes all local orders to the extent they conflict with or differ from the Order. Violation of the Order is a misdemeanor enforceable by citation or arrest.
Exception to the General Rule: Conducting “Essential Services”
Under the Order, people may continue to conduct or participate in “Essential Services.” Essential Services include (i) obtaining groceries, medical supplies or equipment needed to work from home or maintain the safety, sanitation and essential maintenance of the home (statedly, however, preference should be given to online ordering, home delivery and curbside pick-up wherever possible), (ii) seeking medical, behavioral health or emergency services, and (iii) exercising outdoors, including golfing and going to state parks (as long as you remain 6 feet away from other people who are not occupants of your residence).
Exception to the General Rule: Going to Work
With respect to business, employees can still go to work and businesses can remain open in one of two circumstances:
1. Critical Infrastructure. Businesses deemed as “Critical Infrastructure” are permitted to remain open and may continue in-person services, but are required to implement measures which mitigate the exposure and spread of COVID-19 among their workforce, which may include, but are not limited to, 16 enumerated recommendations in the Order (listed below at the end of this article). Notably, social distancing is not one of the enumerated recommendations.
“Critical Infrastructure,” as defined, includes (i) entities that provide legal services, home hospice, food distribution and other health or mental health services, (ii) suppliers that provide essential goods and services to the critical infrastructure workforce, and (iii) certain functions defined as “essential critical infrastructure workforce” pursuant to guidance issued by the U.S. Dept. of Homeland Security, Cybersecurity and Infrastructure Security Agency (CISA Guidance) dated March 19, 2020 and revised on March 28, 2020 (see CISA guidance here). The CISA Guidance is a detailed memorandum describing critical infrastructure workforce by functional group, and includes groups such as defense, energy, health care, services in support of those sheltering in place, financial, food and agriculture, certain commercial facilities, government and law enforcement, public works, transportation, critical manufacturing, transportation and logistics, etc. Careful analysis of the CISA Guidance is required to determine its applicability to a particular business.
If you are unsure whether your business qualifies as “Critical Infrastructure,” the Order gives the Georgia Department of Economic Development the authority to issue guidance to any business regarding its status as Critical Infrastructure. Questions can be emailed to [email protected].
2. Minimum Basic Operations. Businesses not defined as “Critical Infrastructure” can also continue to operate, but may only engage in “Minimum Basic Operations,” which include (i) the minimum necessary activities to facilitate remote working or provision of remote services, (ii) services involving employees who work outdoors without regular contact with other people (e.g., delivery, contractors, landscape and agriculture), as well as (iii) (and here it gets a bit vague) “the minimum necessary activities to maintain the value of a business… provide services, manage inventory, ensure security, process payroll and employee benefits, or for related functions.” Notably, businesses conducting Minimum Basic Operations are permitted to remain open to the public, but unlike Critical Infrastructure businesses, must maintain social distancing, which requires that the business does not allow more than 10 people to congregate at a single location, requires a distance of at least six feet between people and adheres to a list of 20 enumerated requirements (listed at the end of this article).
Many businesses may fall into this category and will need to exercise prudence in conducting operations so as to comply with the Order, noting that the Georgia Department of Public Health, the Georgia Department of Public Safety or other state officers are, after providing reasonable notice, authorized to close a business not in compliance with the Order.
Applying the Order
Applying the foregoing rules, certain businesses may continue to operate, some must modify operations, and some are required to close.
1. Critical Infrastructure. Businesses that fall within this category may continue to operate, may maintain in-person operations, and should consider the below-listed 16 workplace recommendations. Determining whether a business constitutes “Critical Infrastructure” is a business-by-business analysis.
For real estate developers and investors, note that the CISA Guidance includes the following as essential critical infrastructure workforce: “residential and commercial real estate services, including settlement services,” financial services, including “commercial lending,” “capital market activities,” and “commercial… access to bank and non-bank services and lending services.” Further detail is not provided in the CISA Guidance, but arguably, on its face, certain commercial real estate services constitute Critical Infrastructure.
With respect to real estate construction, the answer depends on the nature of the construction. A more detailed discussion can be found here.
With respect to childcare, CISA guidance, as well as the Order, indicates that those providing services/dependent care are essential when providing such service in support of others who are performing essential services. Accordingly, if your work constitutes Critical Infrastructure, care of your children should, too.
Critical Infrastructure businesses that continue in-person operations should review the 16 enumerated workplace requirements listed below and consider adopting these criteria as policy and providing notice to employees of the same in order to satisfy the recommendations of the Order.
2. Certain Businesses Must Modify Operations. All restaurants and social clubs must cease dine-in, but may continue takeout, curbside pick-up and delivery that otherwise adhere to the social distancing and sanitation requirements of the Order. Dine-in services at hospitals, healthcare facilities, nursing homes and long-term care facilities are excepted, but instructed to offer in-room dining to the extent possible.
Many businesses that do not constitute Critical Infrastructure will likely fall into this category. This may include numerous “office” jobs and a number of retail operations. These businesses may continue “Minimum Basic Operations,” subject to required implementation of the below-listed 20 workplace measures.
It is unclear what exactly “Minimum Basic Operations” consist of. It is defined, in part, as “minimum necessary activities to maintain the value of a business,” and as “provid[ing] services,” which could be interpreted somewhat broadly. However, the Order is clear that Minimum Basic Operations is intended to be something less than ordinary operations. Perhaps the room for interpretation is intentional to give business owners some leeway to determine alternative methods for delivering goods and services (noting, however, that the State has the power to close any business it determines is not complying with the Order).
Consider also that even if a business remains open to the public, consumers are only permitted to engage in Essential Activities, which is a limited set of activities, arguably excluding travel to and patronage of a number of businesses. This would cause the odd result that a business is permitted to stay open, but consumers are not permitted to patronize that particular business. Again, this shifts the onus to business owners to consider alternative methods for delivering goods and services.
Businesses engaging in “Minimum Basic Operations” should review the 20 enumerated workplace requirements listed below and consider adopting these criteria as policy and providing notice to employees of the same in order to satisfy the requirements of the Order.
3. Certain Businesses Must Close. Gyms, fitness centers, bowling alleys, theaters, live performance venues, amusement parks, body art studios, cosmetologists, estheticians, barber and beauty shops, hair designers, massage therapy, bars and nightclubs shall cease all in-person operations and close to the public during the effectiveness of the Order.
The Order also speaks to persons ordered to shelter in place, who shall not receive visitors except for those providing necessary care and supplies. Visitors shall maintain distance of at least 6 feet from another person and those visiting for the sole purpose of delivery shall, to the extent practicable, not enter the residence or make contact with anyone therein.
Violation of the Order is a misdemeanor, preceded by a warning (to the extent possible), and can result in citation or arrest.