On March 22, 2020 Dallas County Judge Clay Jenkins issued an amended “Stay Home Stay Safe” order applicable to Dallas County. The Order, available here, takes effect at 11:59 pm on Monday, March 23 and expires 11:59 pm on Friday, April 3, unless extended. Judge Jenkins expects the Order will be extended. The Order requires individuals to shelter in their place of residence and not leave unless it is for: (1) Essential Activities; (2) to perform Essential Governmental Activities; or (3) to operate Essential Businesses. All businesses that are not defined as “Essential Businesses” are required to cease activities at facilities in Dallas County, and the Order apparently is intended to restrict even Dallas County residents who work outside the County.
All businesses in Dallas County may continue operations by performing business operations remotely. In general, if an employee can perform their duties from home, they should plan to do so. For others, business will need to assess the exceptions in the order for “Essential Businesses” to determine on a company-specific basis whether employees are exempt from the Order. Essential Businesses also should consider providing key employees with written communications to carry while commuting in the event law enforcement questions an employees’ compliance with the Order. These communications can explain an employee’s role in the Essential Business. Further, to minimize coronavirus exposure for Essential Businesses operating in office settings, copies of the DCHHS Social Distancing Recommendations should be provided to in-office employees and posted conspicuously. Even Essential Businesses that are exempted from the Order would be well-advised to plan ahead for the prospect that their employees may need to work remotely in the future. Finally, if an employee at an Essential Business tests positive for coronavirus (COVID-19), that employee cannot go to work in an office setting and is ordered to isolate at home.
Essential Activities include: (1) activities essential to health and safety; (2) obtaining necessary supplies for oneself or for one’s family; (3) engaging in outdoor activity which complies with the social distancing requirements of six feet; (4) caring for family or pets in another household, and (5) to perform work providing essential products and services at an Essential Business.
The Order defines Essential Businesses to include:
- Essential Healthcare Operations – this includes healthcare suppliers, pharmaceutical and biotechnology companies, ancillary healthcare services and shall be viewed broadly to avoid any impacts to the delivery of healthcare.
- Essential Governmental Functions – all services provided by local governments needed to ensure the continuing operation of the government agencies to provide for the health, safety and welfare of the public.
- Essential Critical Infrastructure – work necessary to the operations and maintenance of the 16 critical infrastructure sectors as identified by the National Cybersecurity and Infrastructure Agency (CISA, available here). This includes residential and commercial construction, gas, electrical, oil refining, internet and telecommunications systems, financial institutions, among others.
- Essential Retail – this includes grocery stores, big-box stores, and businesses that supply products needed for people to work from home.
- Essential Services Necessary to Maintain Essential Operations of Residences or Other Essential Businesses – this covers services like trash collection, storage for essential business, and professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities.
- Other Services – news media, and providers of basic necessities to economically disadvantaged populations.
The federal Cybersecurity and Infrastructure Security Agency (“CISA”) has identified sixteen critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof. Employees of these certain critical sectors are permitted to leave their homes for work. The full list of 16 Critical Infrastructure Sectors is: (1) chemical; (2) commercial facilities; (3) communications; (4) critical manufacturing; (5) dams; (6) defense industrial bases; (7) emergency services; (8) energy; (9) financial services; (10) food and agriculture; (11) government facilities; (12) healthcare and public health; (13) information technology; (14) nuclear reactors, materials, and waste; (15) transportations systems; and (16) water and waste water systems. Individuals employed in these sectors are permitted to continue to work outside of their place of residence. CISA has provided a non-exhaustive list of types of employees that are considered critical to infrastructure (See the link to: CISA Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response here.
The Order further states that any manufacturer that retools a substantial portion of its business for purpose of manufacturing and producing ventilators may apply for an “Essential Business” exemption under the Order.
The firm is in the process of analyzing the applicability of this Order to our Dallas County clients. Please contact us if you have questions regarding the Order and its applicability.
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