Lessons from Recent Challenges to States' Stay At-Home Orders
On May 13, 2020, the Wisconsin Supreme Court struck down that state’s stay-at-home order—not because the medical advice to stay home had changed in any way, but because the Wisconsin Department of Health Services, when promulgating the stay-at-home rule, did not properly adhere to the emergency rule procedures provided by statute. Although not every state has statutes like Wisconsin’s that prescribe specific procedures for enacting emergency orders, lawsuits challenging stay-at-home orders have been filed around the country, including in Florida, Michigan, New Hampshire, Ohio, Kentucky, California, Maryland, Virginia, North Carolina, and Illinois.
Closer to home, in New York, a law firm upstate has challenged the authority of the Governor and the Attorney General to promulgate and enforce the state’s stay-at-home order. According to the complaint filed last week, the law firm was declared an essential business, but was served a cease-and-desist order by the Attorney General mandating that the law firm reduce the number of employees working in the office at the same time.
Two important considerations for business owners arise out of these lawsuits. First, even in the event that your state’s stay-at-home order is invalidated by the courts, that does not mean that it is safe to continue operations in the same way as you did pre-pandemic. Even if you would not be liable for violating your state’s stay-at-home order, you are still obligated by federal OSHA regulations to provide a safe workspace for your employees, and all possible precautions should be taken to ensure that your employees and/or customers stay safe. This can include distancing measures, sanitizing schedules, and use of masks. Additionally, as discussed in our other blogs and articles, employer should comply with all applicable guidance, such as that from the CDC, local and state health departments and any industry-specific guidance.
The second consideration is for those businesses that are still operating, having been deemed essential. Do not assume that just because you are an essential business, you can continue your normal operating protocols. If you have employees who can work from home, they should. If you can stagger work shifts to reduce the number of people in the workspace at any given time, those schedules should be implemented and employees should work as far apart as possible while minimizing the duration of any prolonged contact. The additional guidelines apply in this context as well.