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April 2020

Georgia’s Change of Course – Efforts to Reopen the State

April 27, 2020

I. Background

On April 2, 2020, Georgia Governor Brian Kemp signed a statewide shelter in place order. Individuals and businesses were both impacted. A more detailed discussion of the initial order can be found here.

A week later, Governor Kemp felt it necessary to continue his efforts to respond to the COVID-19 pandemic. Those efforts included an extension of the state’s shelter in place order until April 30, 2020. A summary of Governor Kemp’s follow-up efforts to extend and enforce the shelter in place order can be found here.

However, by April 20, 2020, Governor Kemp elected to initiate the process of easing COVID-19 restrictions. In two separate orders, Governor Kemp established new rules for commerce and travel in the state of Georgia. Both of those orders will be discussed in further detail below.     

II. Initial Efforts to Reopen State Commerce

            A. Suspension of Previous Orders

As mentioned above, Governor Kemp’s efforts to ease existing shelter in place restrictions began on April 20, 2020. That marked the date Governor Kemp signed an executive order aimed at “Providing Flexibility for Healthcare Practices, Moving Certain Businesses to Minimum Operations, & Providing for Emergency Response.” The order is scheduled to remain in effect until the Public Health State of Emergency expires. As the title suggests, the order addresses multiple topics. Those topics will be discussed in greater detail below.

                        1. Healthcare Providers

Healthcare providers are one of the business most impacted by Governor Kemp’s April 20, 2020 order. The order is meant to apply broadly to “all medical practices.” This includes dentists, orthodontists, physical therapists, and any other “healthcare-related practices and services that have elected to cease operations because of the spread of COVID-19.” These services are permitted to “begin treating patients as soon as practicable” and are not limited to Minimum Basic Operations. The order does, however, require that such businesses adhere to the guidelines implemented by the Centers for Disease Control and Prevention (“CDC”) and the Centers for Medicare and Medicaid Services.         

                        2. Businesses Restricted to Minimum Basic Operations

Governor Kemp’s April 20, 2020 order also includes provisions directed at gyms, fitness centers, bowling alleys, body art studios, estheticians, hair designers, and massage therapists. Those businesses will be allowed to resume Minimum Basic Operations on April 24, 2020. The order establishes a twenty-point list of precautions these businesses must implement to mitigate the spread of COVID, which include screening employees for fevers and increasing the distance between employee workstations.

            B. Minimum Basic Operations

The April 20, 2020 order also sets out the activities allowed by businesses restricted to Minimum Basic Operations. Those businesses are limited to: 1) activities necessary to maintain the value of a business, 2) activities necessary to facilitate employees working from home, and 3) situations where employees are working outside without contact with other persons.

Under this order, making a business open to the public is considered an activity necessary to maintain the value of that business. This means that the businesses listed above – such as gyms and estheticians – will be allowed to reopen their services to the public so long as they comply with the social distancing guidelines articulated throughout the order.

            C. Social Distancing Guidelines

While the April 20, 2020 order allows certain businesses to reopen themselves to the public, there are important restrictions. As mentioned above, the order sets forth a twenty-point list of guidelines specifically imposed upon businesses allowed to resume Minimum Basic Operations.

Businesses should also be aware that the order prohibits gatherings of groups larger than ten persons within six feet of one another. This provision will be imposed upon all businesses, establishments, corporations, non-profits, organizations, and local governments.

            D. Preemption

Governor Kemp also took steps to ensure that local governments could not implement rules inconsistent with the April 20, 2020 executive order. First, he authorized the Georgia Department of Public Health to take any actions necessary to overcome the “grave emergenc[y].” Such actions may include overriding orders from local government officials. Second, he specifically suspended the enforcement of any local ordinance that is “more or less restrictive than” the April 20, 2020 order. 

III. More Detailed Regulations

The April 20, 2020 order is not the only notable recent development in Georgia’s COVID-19 response strategy. On April 23, 2020, Governor Kemp continued his efforts to ease health-based restrictions by signing an order aimed at “Reviving a Healthy Georgia.” The focus of this order appears to be “protect[ing] the strength of Georgia’s economy” while “provid[ing] for the health, safety, and welfare of Georgia’s residents and visitors.” The April 23, 2020 order is comprehensive, and contains many provisions that businesses throughout the state will find noteworthy.

            A. Timing

Governor Kemp’s order purports to take effect upon its signature – which was affixed on April 23, 2020. However, the order also indicates that its provisions will be effective from May 1, 2020 to May 13, 2020. 

            B. Revised Sheltering In Place Protocol

The April 23, 2020 order requires Georgia residents and visitors to continue undertaking certain social distancing and sanitation efforts. It also encourages individuals to wear face coverings when practicable. Further, it prohibits any gatherings of ten or more people within six feet of one another – unless they are participating in actions deemed part of the state’s Critical Infrastructure.

Not every resident and visitor present in Georgia is required to shelter in place under the April 23, 2020 order. Instead, the order marks a return to Georgia’s earliest shelter in place approach. Only persons identified as being at a higher risk for severe illness will be required to continue sheltering in place under the order. This includes persons: 1) above the age of 65, 2) living in nursing homes and long-term care facilities, 3) with chronic lung conditions, 4) suffering from moderate to severe asthma, 5) suffering from severe heart disease, 6) with compromised immune systems, 7) with class III obesity, or 8) with certain other underlying medical conditions.

Persons who are required to shelter in place will still be allowed to: 1) participate in Essential Services, 2) perform Necessary Travel, and 3) participate in the state’s Critical Infrastructure. 

Those sheltering in place will generally not be allowed to receive visitors. However, multiple exceptions apply, which allow visitors who are: 1) providing medical services, 2) supporting activities necessary to daily living, 3) bringing necessary supplies and services, or 4) received in of end-of-life circumstances. The restrictions on visitors will be “strictly enforced” against nursing homes and long-term care facilities. 

            C. Restaurants

The provisions impacting restaurants and dining services will go into effect on April 27, 2020. On that date, businesses will be allowed to resume providing dine-in services to patrons. Restaurants are expected to provide ample amounts of space between their customers, and the order provides a formula to ensure adequate distance is maintained. Only ten patrons can be present per each five hundred square feet of public space in a facility. Bars and waiting areas can be considered public space under this rubric, while hallways and restrooms cannot.  

This personal space requirement is not the only restriction imposed upon businesses providing dine-in services. Those businesses will also be required to implement measures limiting the potential spread of COVID-19 at their facilities. A meticulous thirty-nine point list of preventative measures is included in the order. Among the list are requirements that certain barriers be established and hand sanitization stations be provided for customers.

            D. Industry and Commerce

Restaurants are not the only businesses impacted by Governor Kemp’s April 23, 2020 order. The order also applies broadly to industry, commerce, and non-profits operating in Georgia.

                        1. Critical Infrastructure

Businesses deemed to be part of Georgia’s Critical Infrastructure will still be required to implement measures to mitigate the spread of COVID-19 if they conduct in-person operations from May 1, 2020 to May 13, 2020. The order provides a suggested seventeen-point list of precautionary measures or those businesses.

                        2. Non-Critical Infrastructure

Those businesses which are not deemed to be part of Georgia’s Critical Infrastructure will be able to conduct in-person operations from May 1, 2020 to May 13, 2020. They will also be expected to implement measures to mitigate the transmission of COVID-19 in their workplaces. The order sets out a twenty-one point list of precautions these businesses must implement during that time period.

                        3. Retailers

Retail stores will also be allowed resume operations under the order. Retailers of both goods and groceries are expected to implement a seven-point list of measures to mitigate the spread of COVID-19.

                        4. Food Processors

The list of mitigating measures imposed upon retailers and grocers does not apply to food processing facilities. Those processors will instead have to comply with a separate thirteen-point list of precautionary measures.

                        5. Gyms and Fitness Centers

As mentioned above, gyms and fitness centers in Georgia will be allowed to resume operations. The April 23, 2020 order establishes a sixteen-point list of precautions that must be observed by those facilities. Those precautions include restricting locker room use and closing certain portions of the exercise areas.

                        6. Body Art Studios, Estheticians, and Massage Therapists

Also discussed above was the authorization for body art studios, estheticians, and massage therapists to resume operations. These facilities will have to observe a thirteen-point list of precautions meant to mitigate the spread of COVID-19. Among these precautions is the requirement that all employees were appropriate personal protective equipment. Employers operating these facilities are expected to stagger work schedules so that no more than 50% of the normal amount of employees will be present at the business at the same time.

                        7. Movie Theaters

Movie theaters and cinemas will be allowed to operate from May 1, 2020 to May 13, 2020 under the order. However, they will have to implement an eight-point list of precautions. Notable among these precautions is the requirement than at least one employee be present in each theater room to ensure that proper social distancing protocols are being observed by patrons.

                        8. Bowling Alleys

Bowling alleys have also been permitted to reopen. Those choosing to do so must observe a thirteen-point list of precautionary measures. These precautions include a requirement that bowling balls be sanitized thoroughly after each use.

                        9. Outdoor Work

Persons working outdoors, such as those delivering packages, are not exempt from the April 23, 2020 order. They must still observe proper social distancing protocols. These protocols include sanitation and distancing guidelines issued by the CDC.

                        10. Shareholder Meetings

Governor Kemp’s April 23, 2020 order extends the earlier authorization allowing official shareholder meetings to be held remotely. Shareholders will be allowed to continue meeting remotely until the Public Health State of Emergency expires.

                        11. Additional Precautions

All organizations, whether critical infrastructure or not, are expected to: 1) provide appropriate personal protective equipment, 2) provide disinfectant and sanitation supplies, and 3) increase the distance between workspaces to six feet. That said, these expectations are only required “if practicable.”

            E. Healthcare

The April 23, 2020 order also provides guidance for various different types of healthcare services providers that choose to resume providing services. All providers must adhere to the requirements imposed upon businesses considered to be Critical Infrastructure. Yet there are additional service-specific requirements to be aware of as well.

                        1. Dental Services

The order requires that, effective immediately, offices providing dental services implement guidance published by the American Dental Association. Specifically, these offices must implement the American Dental Association’s Interim Guidance for Minimizing Risk of COVID-19 Transmission and Interim Mask and Face Shield Guidelines. Any previous orders prohibiting full dental services from being provided are now suspended.

                        2. Optometry

Similarly, licensed optometrists are allowed to resume normal operations. Any previous order prohibiting full services are now suspended. However, optometrists must adhere to the American Optometric Association’s Practice Reactivation Preparedness Guide. They are also expected to implement the Georgia Optometric Association’s COVID-19 Guidelines as updated on April 20, 2020.

                        3. Opticians  

Opticians are also allowed to resume full operations. Any opticians resuming operations must adhere to the CDC’s Recommendations for Office Disinfection and Recommendations for Employers.

                        4. Ambulatory Service Centers

Ambulatory Service Centers are permitted to provide full services, as any prior executive order or departmental rule disallowing their operation has now been suspended. However, these facilities must comply with the guidelines set out for businesses determined to be Critical Infrastructure. They must also observe, to the maximum extent possible, a nine-point list of precautions for limiting the spread of COVID-19. The order also imposes a duty to implement any practicable additional measures available to prevent disease transmission.

                        5. Care Facilities

Under the April 23, 2020 order, nursing homes, hospitals, and other healthcare institutions should offer in-room dining. These facilities are only required to do so “to the extent possible.”

            F. Education and Childcare           

                        1. Schools

Governor Kemp’s April 23, 2020 order allows schools to attend meeting necessary to facilitate, research, administration, and distance learning. It also allows schools to engage in activities necessary for the preparation of the 2020-21 academic year.

                        2. Childcare Facilities

The April 23, 2020 order restricts transportation services provided by childcare facilities. These businesses can only transport children between their homes and the childcare facility. If possible, transportation should be done in a way that complies with social distancing requirements.

Childcare businesses are also subject to sanitation requirements. They must adhere to the guidelines imposed upon businesses deemed to be Critical Infrastructure. They must also implement a thirteen-point set of precautions meant to mitigate the risk of COVID-19 transmissions.

            G. Preemption

Governor Kemp wrote specific preemption provisions into the April 23, 2020 order. The order states that Critical Infrastructure may not be impeded by local ordinance. While the order gives local governments the power to implement its terms, it also indicates that any local action more or less restrictive than the order will be deemed inconsistent with the order. All actions inconsistent with the order are automatically suspended.

            H. Enforcement

Individuals determined to have violated the April 23, 2020 order will be deemed guilty of a misdemeanor. However, order indicates that law enforcement officials should take reasonable steps to provide notice prior to issuing a citation or making an arrest.

Further, the order provides that businesses found in violation of its terms can be subject to an involuntary closure. That said, the order provides that involuntary closure cannot be imposed upon a business until reasonable notice has been provided and the business has been cited twice for failing to comply with the order.

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Employment Law

Chad A. Shultz

Employment Law