Illinois and other states are now on the second week of the extraordinary executive orders colloquially referred to as the “shelter in place” or “stay-at-home” orders. Illinois’ version, COVID-19 Executive Order 8 (the “Order”), was issued by Governor J.B. Pritzker on March 20, 2020, is effective through at least April 7, 2020, but will likely be extended. The requirements of the Order, and the practical takeaways from it for employers struggling to remain open for business and protect their workforces, are instructive to employers in any jurisdiction. A Kelley Drye Client Advisory addressing compliance with Stay-at-Home Orders is located here.

As in other states, the Order generally requires all individuals living in Illinois to stay at home unless they are leaving their home for Essential Activities, Essential Government Functions, or to Operate Essential Businesses and Operations. As summary of Essential Businesses and Operations is contained below.

As employers have worked through both the practical and legal implications of the Order over the past week there are few key lessons to consider. First, communications with employees, customers, and business partners is of paramount importance. Employers need to articulate where their business activities fit into the definition of Essential Businesses and Operations. This is not to say that this analysis must be communicated to all parties in the same way. For example, company leadership should craft communications that focus on the concerns that customers and business partners, some of which may be essential businesses themselves, may have with regard to the company’s business continuity plans in response to the Order.

Second, and as a related point, companies should put communications with employees in the context of the Order. Failure to address how the employees’ work assignments generally fit into the context of the Order can cause confusion. For example, it may not be readily apparent to employees that the company is an essential business because they may not have insight into how the company fits into the overall business ecosystem. Brief background information on the Order’s effect on a company’s employees can be included in schedule or shift changes and “work from home” expectations.

Employee communications should also take into account the stress that employees may be feeling both in terms of protecting their health and job. Companies should also be aware of the Social Distancing Requirements and other protective measures that must be implemented in the workplaces that remain open, including:

Employers must take protective measures to encourage Social Distancing Requirements including: (1) designating six-foot distances; (2) providing hand sanitizers and sanitizing products; (3) regularly cleaning high touch surfaces; and (4) posting online whether a business is open and how to reach the business remotely.
Employers must implement separate operating hours for elderly and vulnerable customers.
Employees must maintain at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes, and not shaking hands.

Takeaways:

When interpreting the Order, always consider its intent, which is to maximize the number of people self-isolating in their place of residence while enabling essential services to continue to slow the spread of COVID-19.
Understand and be prepared to communicate how the company and specific operations within the business fit into the Order’s definition of Essential Businesses and Operations.
Consider drafting a letter on company letterhead for employees exempted by the Order so they can show it to law enforcement in the event law enforcement question employees during their commute to or from work.

If you need assistance creating a plan that complies with the Order while maintain business continuity, please reach out to counsel.

Individuals working at Essential Businesses and Operations may continue working subject to complying with Social Distancing Guidelines. The Order broadly defines Essential Businesses and Operations as:

Healthcare and Public Health Operations: Working at or obtaining services from hospitals; clinics; dental offices; pharmacies; public health entities; healthcare manufacturers and suppliers; blood banks; medical cannabis facilities; reproductive health care providers; eye care centers; home healthcare services providers; mental health and substance use providers; manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, personal protective equipment, medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products; ancillary healthcare services — including veterinary care and excluding fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.
Human Services Operations: any provider funded by DHS, DCFS or Medicaid; long-term care facilities; home-based and residential settings for adults, seniors, children, and/or people with disabilities or mental illness; transitional facilities; field offices for food, cash assistance, medical coverage, child care, vocational services or rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, and social services and other necessities of life for needy individuals — excluding day care centers, day care homes, group day care homes and day care centers unless providing services for individuals working in Essential Activities or Essential Government Functions (even those childcare arrangements cannot have more than 6 children).
Essential Infrastructure: Working in food production, distribution and sale; construction; building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical; distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems
Essential Government Services: All first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military and other government employees; all services provided by the State or any municipal, township, county, or agency of the government needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety, and welfare of the public.
Minimum Basic Operations: The minimum necessary activities to maintain the value of a business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions and to facilitate employees of the business being able to continue to work remotely from their residences.
Stores that sell groceries and medicine.
Food, beverage and cannabis production and agriculture.
Organizations that provide charitable and social services.
Media.
Gas stations and businesses needed for transportation.
Financial institutions.
Hardware and supply stores
Critical trades, including plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers that maintain the safety, sanitation and essential operation of residences, Essential Activities, and Essential Businesses and Operations.
Mail, post, shipping, logistics, delivery and pick-up services.
Educational institutions, for purposes of facilitating distance learning, performing critical research, or performing essential functions.
Laundry services.
Restaurants for consumption off-premises.
Supplies to work from home.
Supplies for Essential Businesses and Operations.
Transportation, for purposes of Essential Travel.
Home-based care and services.
Residential facilities and shelters.
Professional services.
Manufacture, distribution, and supply chain for critical products and industries.
Critical labor union functions.
Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
Funeral services.

Lessons from Illinois’ Shelter in Place Orders