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April 2020

Update for DC Metro Area: Stay-at-Home Orders and Restrictions on Businesses

April 3, 2020

Due to their close proximity, Washington, D.C. ("DC"), Maryland, and Virginia are host to many businesses that cross state lines, with employees located in each distinct jurisdiction that may be subject to differing state orders. Businesses in the DC area face a unique challenge in navigating an ever-changing pandemic response landscape.

In March alone, DC, MD, and VA each announced between 5-10 executive orders to update the community on COVID-19 responses. Most significantly, on March 30, all three issued Stay-at-Home Orders, which each placed significant restrictions on residents and businesses alike.

Of course, the respective jurisdictions’ directives on these issues are a dynamic proposition and are subject to change.

Consistencies in State Orders:

While there are differences that may apply to employers in the DC area, there are also many consistencies in their collective response.  

Stay-at-Home Orders:

DC, Maryland, and Virginia all issued stay-at-home orders on March 30, requiring residents to stay in their homes with minimal exceptions, which include working in essential jobs, obtaining food or medical care, and exercise. Social distancing measures are to be maintained to the greatest extent possible, and violations of the order may be subject to misdemeanor charges.

Mass Gatherings:

At first, DC, Maryland, and Virginia provided direction on mass gatherings both at different times and in different capacities, but as of March 25, 2020, gatherings with more than 10 people are prohibited.

Essential businesses, discussed in detail below, are encouraged to follow social distancing guidelines to the best of their ability while remaining open.

Closed Businesses:

DC, Maryland and Virginia have overall come close to cohesion on many of their closed businesses, some with more leeway than others. Throughout the DC Metro region, theaters, gyms, salons, and any general recreational facility remain closed.

While there are some distinctions between the three, they are generally in agreement in terms of closing establishments that either tend to gather groups of people (such as gyms, and theaters), or by nature require close contact with others (such as hair and nail salons).

Restaurants and Bars:

The DC area has also had a great level of cohesion in their regulation of bars and restaurants to combat the pandemic. All restaurants and bars are permitted to continue take-out and delivery service, although each region came to this conclusion at different times.  

Essential Businesses:

With some differences in implementation, timing, and specifics, the DC Metro region has largely agreed on the following essential businesses:

  • All healthcare related industries, whether suppliers or care providers, including veterinary services and animal shelters
  • Essential Government Functions, such as Police Departments other emergency services
  • Grocery stores, food banks, and other food retailers, including liquor stores
  • Financial institutions, such as banks
  • Gas stations and convenience stores
  • Electronics retailers and internet/telecommunications service providers
  • Construction, subject to some provisions, to ensure safety
  • Home improvement hardware stores and services
  • Laundromats and dry cleaners
  • Media outlets, such as newspapers and television/radio shows
  • Public transportation services - subject to reduced schedules 

Minimum Business Operations:

DC and Maryland have allowed “minimum business operations” to continue for non-essential businesses. While there are some differences in implementations and consequences for violations, they agree that businesses should be permitted to continue operations in limited circumstances.

In Washington, D.C., the Mayor has specified that this includes minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and benefits, and allow for continued telework.

Also in DC, the Mayor alerted businesses that those non-essential businesses  that are operating under the “minimum business operations” umbrella, may be asked to show an operational plan to explain why they need to conduct activities, how they are conducting them, and how they fit into the allowable limits. Further, DC may impose penalties.

In Maryland, this includes for purposes of promoting telework, maintaining essential property, performing essential functions (i.e. mail and payroll), caring for live animals, and allowing retail locations to conduct delivery services.   

Important Differences in Closures and Essential Businesses:

The list of essential businesses and provisions guiding their operations is constantly evolving, with some areas providing more clarity than others. The following chart details some important differences in language in each state’s provisions on essential businesses:

 

Washington, D.C.

Maryland

Virginia

Construction

Greatest leeway in terms of essential business designation, with all repair services included, as well as supply stores, in the interest of specific allowances for services that are necessary to maintain safety, sanitation, and operation of residences and other essential businesses

Unclear if construction is considered essential; however, manufacturing of steel, iron, aluminum, engines, construction equipment, medical equipment, and cleaning and sanitation supplies is permitted

Virginia has not specifically stated if construction is essential or non-essential, and has guided businesses that have not been explicitly categorized and where telework is not feasible to follow social distancing guidelines, use enhanced sanitation practices, and follow CDC workplace guidelines  

Essential Infrastructure

Public works, such as roads, sidewalks, street lighting, traffic control devices, etc., and utilities such as electricity, gas, telecommunications, water, and waste collection

Utility maintenance is permitted, municipal, community, and other drinking water and wastewater systems and facilities, and telecommunication services

Utility companies are to suspend service disconnections for 60 days to provide any customer, residential and business, who may be financially impacted by the COVID-19 outbreak

Social Services

Essential businesses include those who provide food, shelter, and social services and other necessities of life for economically disadvantages or otherwise needy individuals, and organizations or components of organizations that process eligibility for such services. Medical Marijuana dispensaries are also permitted

Rehab facilities, senior living facilities, medical marijuana dispensaries, bail bondsmen, court reporters, and lawyers and law firms

Department of Social Services is working with local partners to ensure access to food and essential services for vulnerable populations. Nothing in VA orders are permitted to limit access to essential services to low-income residents

Hotels

Considered essential, along with all other housing a living facilities. Use of conference facilities, ballrooms, and dining-in facilities are all non-essential

Lodging services specifically stated as permitted – order did not designate specific restrictions on hotels

Virginia has prohibited reservations for overnight stays of less than 14 nights at all privately-owned campgrounds  

Retail Facilities

Retail clothing scores are considered non-essential

Portions of enclosed malls must be closed- appears outdoor access stores may remain open with social distancing restrictions

Dollar stores, electronic retailers, home improvement, lawn and garden equipment retailers are all essential.

 

Any brick and mortar retail businesses not specifically listed may continue to operate but must limit all in-person shopping to no more than 10 patrons per establishment

Office Supply

Not specifically stated in the order; however, household consumer products sales are permitted

Not specifically stated

Printing and office supply stores considered essential

Commercial Facilities

Vaguely stated, sales not involved in essential services and professional services not devoted to assisting essential business operations are prohibited

Lodging, building and property maintenance companies, janitorial services, and self-storage facilities permitted

No specific designation; however, businesses providing professional services may remain open, but should utilize telework as much as possible. Where telework is not feasible, such businesses must adhere to social distancing recommendations, enhanced sanitizing practices, and follow any other relevant workplace guidance from state and federal authorities.

Door-to-Door Solicitations

Any sale not involved in essential services is prohibited, and touring guides and touring services are non-essential

As solicitation is likely to violate social-distancing guidelines, even for essential businesses, this is prohibited

No designation

Child Care

Essential, but priority to providing services for essential employees. Facilities must follow OSSE Guidance for Childcare providers and Families related to COVID-19

Child care services available for providers of health care, medical services, and law enforcement personnel while schools are closed. Childcare has strict social distancing guidelines and rules to keep children in small groups and enhanced hygiene regimes

Child care providers should limit capacity to 10 total individuals per room and prioritize care for children of essential personnel

Educational Institutions

Facilitation of distance learning is permitted, as well as modification of facilities to provide for support for addressing COVID-19.

 

K-12 educational institutions are closed in the District at least through April 24th.  

Maryland K-12 education institutions are closed at least through April 24th.

Virginia K-12 education institutions are closed for the remainder of the school year

 

Maryland Price Gauging:

In addition to the above regulations to combat COVID-19, Maryland has additionally enacted price gauging measures to prohibit price increases on goods and services that would cause the retailed to profit by more than 10%. These industries include, but is not limited to

  • Food and beverage Sales
  • Fuel
  • Medicine and medical supplies and equipment
  • Hygiene and personal care products
  • Cleaning products
  • Pet food and veterinary care
  • Motor vehicle parts and repairs
  • Building supplies and equipment
  • Home improvement and maintenance
  • Electronic devices
  • Internet, telephone, and other telecommunications
  • Child care

Maryland Remote Notarizations:

On March 30, Maryland issued an order allowing notaries to conduct remote notarization though use of video technology. To use these services, the notary must be able to see and hear the individual.

Employment Regulations:

Affected employers and employees have access to many services, which are only increasing, to make it through the COVID-19 outbreak. These services and programs are available through both state and federal regulations. Below is a breakdown of what is available in the DC area.

 

Washington, D.C.

Maryland

Virginia

General notes

  • DC has provided additional protections for those suffering from COVID-19, including adjustments to FMLA leave and initiatives for small businesses
  • Businesses who paid their Maryland Sales & Use Taxes for March early may request a refund of their payment
  • The Maryland Department of Labor is now accepting applications for the COVID-19 Layoff Aversion Fund, which can provide funds to help businesses with 500 or fewer employees purchasing remote access equipment and software to allow employees to work from home, provide on-site cleaning and sanitation services or other creative strategies to mitigate potential layoffs or closures
  • Employers who slow or cease operations will not be financially penalized for an increase in workers requesting unemployment benefits.
  • Rapid response funding is available through the Workforce Innovation and Opportunity Act, for employers eligible to remain open during the emergency. Funds may be used to clean facilities and support emergency needs.
  • Virginia has requested Title XII advances from the Federal Unemployment Account

WARN Act

Follows Federal WARN Act

  • Federal WARN Act applies
  • Maryland additionally has a voluntary law, entitled the Maryland Economic Stabilization Act, which applies to employers in the industrial, commercial, and business industries with 50 or more employees.

Follows Federal WARN Act

FMLA

  • The one year employment requirement and 1,000 hour work requirement shall not apply to an employee who has been ordered or recommended to quarantine or isolate due to COVID-19
  • No known designated differences for COVID-19
  • No known designated differences for COVID-19

Small Businesses

  • DC small business recovery Microgrants are available
  • SBA Disaster Assistance Loans

 

  • Maryland is offering Maryland Small Business Loan and Grant funds, as well as funding for manufacturers who are producing PPE
  • State of Maryland has qualified for SBA assistance, and businesses may apply with the SBA  for low-interest loans through the Economic Injury Disaster Loan program
  • Virginia received a statewide Economic Injury Disaster Loan declaration from the U.S. Small Business Administration (SBA). Small businesses and non-profit organizations located throughout the state can now apply for a loan of up to $2 million from the SBA to pay fixed debts, payroll, accounts payable, and other expenses.

Unemployment Benefits

  • DC is permitted unemployment claims for those affected by COVD-19 by either the virus itself or if their employer has terminated them or reduced their hours.
  • Work search requirement is waived
  • Documentation may be required to show that an employee has been requested to isolate or quarantine
  • Businesses, on a case by case basis, may have financial penalties waived if filing tax reports late due to COVID-19
  • Maryland does not have a waiting week requirement
  • Those who are temporarily unemployed may file for unemployment
  • If subject to reduced hours, employees may be eligible for partial benefits
  • Applicants are exempt from the requirement to actively seek work for a 10 week period, starting March 21st  

 

  • No waiting for unemployment – usual one week waiting period has been waived
  • Enhanced eligibility - If a worker has been issued a notice to self-quarantine by a medical or public health official and is not receiving paid sick or medical leave from their employer, they may be eligible to receive unemployment benefits. In addition, a worker may be eligible for unemployment benefits if they must stay home to care for an ill family member and are not receiving paid family medical leave from their employer.
  • For individuals receiving unemployment insurance, the Virginia Employment Commission is giving affected workers special consideration on deadlines, mandatory re-employment appointments, and work search requirements.

The Federal WARN Act

The Worker Adjustment and Retraining Notification (WARN) Act guides employers through the requirements for giving advance notice of closings and layoffs to employees.

A WARN notice is required when a business with 100 or more full-time employees is laying off at least 50 people at a single site of employment, or employs 100 or more workers who work at least a combined 4,000 hours per week, and is a for-profit business, private non-profit organization, or a quasi-public entity separately organized from the regular government.

Exceptions to Notice Requirement:

Exceptions to the 60-day notice requirement exist for unforeseen business circumstances and natural disasters. The exception for unforeseen business circumstances applies when there is a sudden, dramatic, and unexpected action or condition beyond an employer's control that was not foreseeable when notice ordinarily would have been required. This may include unanticipated and dramatic major economic downturns and government-ordered closings of employment sites without prior notice. The exception for a natural disaster typically applies when a closing or mass layoff is the direct result of a natural disaster. While it is more likely that the first exception would apply in a pandemic, it is worth keeping the second exception in mind due to the fact that President Trump has activated emergency powers under the Stafford Act, which most often involves natural disasters. Keep in mind, these exceptions may not fully eliminate the obligation to provide notice but may serve to shorten the notice period. Employers should provide as much notice as practicable under the circumstances.

It is additionally important to note that WARN does not supersede laws or collective bargaining agreements that require additional notice, rights, or remedies.

New Federal Sick Leave Law

The Families First Coronavirus Response Act (“FFCRA”) is effective April 1, 2020. Employers of up to 500 employees are required to provide Emergency Paid Sick Leave (EPSL) to their employees without regard for eligibility or time worked requirements.  Please note, if you allow an employee to go on leave (whether paid or unpaid) or furlough an employee (as opposed to a layoff), then your employees are entitled to this EPSL.

Reasons for leave:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 – note this would include any employee subject to a shelter in place order provided they do not work for a business providing an essential service.  If your employees are working because they are providing an essential service, then the employee could not use EPSL to take time off for this particular reason. The following reasons may still apply.
     
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
     
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
     
  4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above.
     
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
     
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Hours of paid leave:

  1. Full Time – 80 hours
  2. Part Time – average hours for a 2-week period.                    

If you intend to have employees remain on staff who would be eligible for EPSL, contact one of our attorneys so we can guide you through how much to pay.  Your business may be entitled to tax credit for providing this type of leave.

As this law applies to employers with up to 500 employees, you may have questions about how this total is calculated.  If under the FMLA, your company and subsidiaries are considered integrated then it is true for FFCRA.  FMLA follows Title VII guidance for whether subsidiaries are integrated.  The factors to consider are:

  • Interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment;
  • Common management, common directors and boards;
  • Centralized control of labor relations and personnel, i.e., hire and fire employees; and,
  • Common ownership and financial control.

The factors are not evaluated as stand-alone.The entire relationship is to be reviewed in its totality.

Federal Medical Leave Expansion Act (EFMLE)

Effective April 1, 2020, EFMLE provides additional protections for employers with fewer than 500 employees. Employees who are eligible must be employed for at least 30 days at the time the leave is requested, and the leave must be a “Qualified Need Related to A Public Health Emergency” or “PHE,” which exists when declared by a Federal, State, or local authority. Under the EFMLE, employees must be restored to their position upon return from their leave.

This is a very narrow policy- employees may only request leave if they are unable to work (or telework) due to the need to care for their child under the age of 18 if the child’s elementary or secondary school or place of care is closed, or the care provider of the child is unavailable due to a PHE.

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act – the Federal government’s third aid package intended to keep businesses and individuals afloat during the COVID-19 Pandemic.

Small businesses, which includes businesses eligible for loans from the SBA, non-profit organizations, veterans organizations, or Tribal businesses, are eligible for the Paycheck Protection Program if they have fewer than 500 employees.

Maximum loan amounts are the lesser of $10,000 or 2.5 times the borrower’s average monthly payroll costs – determined by the one year period preceding the date of the loan. These loans can be used for payroll costs, group health care benefits, employee salaries, payments of interest on any mortgage obligation, rent, utilities, and interest on any other debt obligations incurred prior to the covered period.?

Options for Employers:

Option

Description

Important Information

Remote Work

Employee remains in the workforce and gains access away from the office to employers systems through a virtual desktop

  • Employers may have to pay for incurred expenses to working from home
  • Allows business to continue as normally as possible without extensive in-person contact with co-workers or clients

Reduced Hours/Pay

Reduction in hourly rate or prospective salary

  • Minimum wage is still required
  • Reduction in exempt salary may result in loss of the employee’s exempt status, but exceptions may apply.
  • May only reduce going forward, not retroactively
  • Consider giving at least 7 days advanced notice

Furlough

Employee remains employed, but pay is suspended

  • Employees must not work
  • Employees keep health insurance and other benefits
  • Employer may restrict use of PTO

Termination

Total removal from the workforce, with no guarantee of returning to work

  • If employer is subject to WARN, notice is required.
  • Final pay due on last day of work, including pay out of vacation/PTO
  • Paid through the final day of work
  • Sick leave does not need to be paid out

 

Making a Decision:

When deciding how to handle a financial crisis, employers have more to consider than a reduction in their work force. Cost is associated with each route discussed above, that can be dependent on a number of factors.

Furloughed employees are able to keep their benefits package, which can be costly to employers, and, under new sick leave policies, employers may also be required to pay for additional leave. Terminated employees are able to have their vacation time paid out, which, particularly for long-term employees, may be more costly than a reduction in hours or furlough. These are only a few of the many considerations employers need to evaluate prior to making any staffing decisions.

Fortunately, DC, Maryland, and Virginia are creating programs that ease the pain on employers when dealing with these issues, and have increased services for terminated or furloughed employees, and eased penalties on employers given the unprecedented impacts of the COVID-19 outbreak. The DC area is likely to continue to create new protections and services for employers and employees to help businesses and individuals survive in such a volatile climate. With the situation constantly evolving, it is important than businesses monitor each Governor’s executive orders, and seek advice as needed to navigate this changing landscape.

Visit our COVID-19 Hub for ongoing updates.

 

COVID-19 Task Force

Kelly M. Lippincott
Susan Childers North
Brian A. Scotti
Laura A. Weipert



COVID-19 Task Force
Employment Law