Client Alert: ME’s Emergency Order Regarding Essential Businesses and Operations

By: Paul McDonald and Bill Wahrer

The COVID-19 pandemic has spawned governmental action at all levels in an attempt to lessen its impact on public health and to stabilize financial markets. The majority of states and many municipalities have issued orders declaring a state of emergency and authorizing the use of emergency powers to combat the serious health and safety risks of the COVID-19 outbreak. As part of an attempt to promote social-distancing practices and reduce the transmission of COVID-19, these orders typically limit certain business operations through stay-at-home or shelter-in-place directives. These orders, however, also recognize that certain aspects of society need to remain functioning and thus, exempt certain “essential businesses and operations” from being shut down.  Even those businesses that are not deemed “essential” may still remain open if they are able to follow certain criteria under these orders.

On March 24, 2020, ME’s Governor Mills issued an Executive Order mandating that all non-essential businesses and operations in ME close their physical locations that are public facing.  On March 30, 2020, the City of Portland issued a proclamation renewing and amending its prior proclamation declaring a continued state of emergency and a requirement to stay at home. The next day, Governor Mills issued a series of substantial new mandates, which included a stay-at-home directive.

The impact of these orders depends on the size and nature of your business. Below is an overview to guide you in assessing what you can and cannot do as a business in light of these orders.

ME’s Emergency Order Regarding Essential Businesses and Operations

Non-Essential Business Operations

All non-essential businesses must cease business activities at locations that are public facing. “Public facing” means (i) spaces that require customer or vendor or other in-person contact; or (ii) are at sites that require more than 10 workers to convene in space where social-distancing is not possible. Notwithstanding these restrictions, all businesses still may process payroll, employee benefits and related functions, or take orders by phone, email or other remote means and prepare such orders by delivery, among other actions.

Businesses that do not conduct public facing activities may continue operations; however, all businesses must make their best efforts to implement and actively enforce social-distancing requirements in and around their facilities, which includes, but is not limited to:

1. Designate with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
2. Have hand sanitizer and sanitizing products readily available for employees and customers;
3. Implement separate operating hours for elderly and vulnerable customers; and
4. Post online whether a facility is open and how best to reach the facility and continue services by phone or remotely.

Essential Business Operations

“Essential businesses” can continue activities consistent with the State’s guidance on social-distancing to the maximum extent practicable.

For the most part, those businesses deemed “essential” track the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency’s (CISA) designation of what constitutes “critical infrastructure.” These broad categories include but are not limited to health care and public health, law enforcement and public safety, and energy entities.

The Governor’s Executive Order expressly exempts, in addition to or as to clarify the CISA designations, the following businesses that are deemed essential:

• food processing and agriculture;
• fishing and aquaculture;
• industrial manufacturing;
• construction and maintenance of essential infrastructure;
• trash collection and transfer stations;
• grocery and household goods (including convenience stores);
• forest products;
• essential home repair, hardware and auto repair;
• pharmacy and other medical, psychiatric, and long-term care facilities;
• group homes and residential treatment facilities;
• biomedical, life science, behavioral health, health care, dental care, and long-term services and supports providers and organizations;
• child care providers;
• post offices and shipping outlets;
• banks and credit unions;
• gas stations and laundromats;
• veterinary clinics, animal welfare and animal feed and supply stores;
• truck delivery and distribution of goods;
• public transportation;
• legal, business, professional, environmental permitting and insurance services;
• hotel and commercial lodging;
• all utilities such as electricity, water, wastewater, and telecommunications.

A full list can be found here. Violations of the Executive Order can be enforced by the police, including by arrests, and would be a Class E crime (up to six months in jail and a fine).

What is the impact of the Governor’s March 31st Executive Order on my business?

Beginning April 1st and continuing until April 30th, the Governor’s March 31st Executive Order extends many of her mandates and directives issued in prior Executive Orders, including her Emergency Order Regarding Essential Businesses and Operations.  In addition, it directs all persons living in ME to stay at their homes/places of residence except:

• For individuals to conduct Essential Activities;
• Workers of Essential Businesses to travel to and from their workplace, to and from child care, and to and from customers for the purpose of delivering goods or performing services;
• Workers of Non-Essential Businesses traveling to their Non-Essential Businesses to engage in Minimal Operations, and to and from customers for purpose of delivering goods.

The Order also specifies further guidance and restrictions for retailers identified as Essential Businesses. Specifically, such businesses are directed to prioritize remote orders and promote more curbside pick ups and imposes limits on the number of customers a business can have in its store at one time, which depends on the square footage of that store. For example, retailers with more than 75,000 square feet in store space must, as soon as practicable, install protective shields between the customer and checkout and pharmacy personnel.

Essential Stores are also directed to:

• Implement and actively enforce social-distancing requirements in and around their facilities;
• Prominently post signage at all public entrances instructing customers to remain six feet away from other people inside and outside the store;
• Mark every customer line with signage and floor lines designed to impose social- distancing;
• Disinfect the handles of every used cart and basket prior to customer reuse;
• Take all reasonable steps to minimize customer handling of unpurchased merchandise;
• Offer separate operating hours for persons over the age of 60 and customers with medical conditions to be the only customers in the store;

Failure to comply may result in further on-site restrictions or closure until the violations are remedied.

The Executive Order also restricts the use of public and private transportation and directs that schools shall remain closed for classroom or other in-person instruction until at least May 1, 2020.

Portland’s March 30th Emergency Proclamation

What is the impact of Portland’s Emergency Proclamation?

This proclamation is in effect from March 30th until April 27, 2020, and directs all individuals currently living within Portland to stay at their place of residence except to access COVID-19 Essential Services. The proclamation mirrors the Governor’s Order regarding Essential Businesses as Essential Businesses may remain open but are directed to follow social-distancing protocols to the greatest extent possible. Non-Essential Businesses are directed to close their physical workspaces to workers, customers, and the public and are encouraged to continue operations through remote means. Non-Essential Business’s may access their physical locations to conduct essential business functions (i.e. processing mail, completing payroll, depositing checks, etc.) as long as social-distancing protocols are being followed and the fewest number of employees are present.