Still Open? How to Determine Whether You Qualify as an “Essential Business”

Yesterday, we alerted you to the impact of Ohio’s Stay-at-Home Order, which mandated the closure of non-essential businesses. Some operations clearly fall under the Order’s definition of essential, such as hospitals, pharmacies, and grocery stores. The Order also allows those businesses that supply services and materials to essential businesses to continue to operate.

Herein lies a bit of a gray area. If you function somewhere within this supply chain and want to remain open, you should be prepared to articulate the essential function you are serving. But doing that can be tricky.

The Government Will Not Help You Determine Compliance

You may be tempted to contact law enforcement or a government agency to inquire as to whether you qualify as an essential business, but Ohio Lt. Governor Jon Husted has warned against that, saying:

“Please don’t call law enforcement or the local health department asking them to interpret it for you. It’s their job to enforce the order. It’s not their job to interpret it for you.”

And while most police departments have indicated that they will not set up specific check-points or intentionally seek out violators, it will be very helpful to provide your employees with some documentation to show law enforcement that explains that they are an essential worker in case they are stopped for any other reason.

A Simple Solution

Since the Order was announced, I and other lawyers at Kegler Brown have been analyzing client businesses with respect to their “essential business” standing and, importantly, creating two helpful documents for those who are deemed to be essential.

  1. For Your Business. We analyze the basic structure of the client’s business, apply the guidance of the Order, and provide written advice regarding how likely the business is to be essential.
  2. For Your Employees. For those clients who are deemed essential and want to keep employees working, we have been drafting letters for each employee to carry and potentially present to law enforcement, articulating why that person is a necessary employee.

If you are choosing to remain open, it is vital that you sufficiently determine whether you operate an “essential business.” And if you are, it’s equally as important to equip your business and its employees with the resources they need in the event of an investigation or stoppage away from home.

Anyone with questions about how the Order impacts their business and employees is encouraged to seek independent legal counsel. I can be reached directly at [email protected] or (614) 462-5484.