Like many states across the country, the DC, Maryland, and Virginia area, which is commonly called “the DMV,” is restricting movement of residents in an effort to slow the spread of the COVID-19 pandemic. On March 30, 2020, the mayor of the District of Columbia and the governors of Virginia and Maryland issued updated orders in response to the rising number of COVID-19 cases and deaths in the DMV area. The orders mandate stay at home requirements and restrict activities of non-essential businesses in each location. The Virginia order extends the duration of the restrictions until June 10, 2020, while the duration of the DC and Maryland orders remain unchanged. The Maryland order remains in effect for an indefinite duration or until it is rescinded or changed, or the jurisdiction suspends the state of emergency; while the DC order maintains the target end date of April 24, 2020, although it reserves the authority to rescind, suspend, or extend the order.
District of Columbia Issues Updated “Stay Home DC” Order (Effective Through April 24, 2020, Unless Rescinded or Extended)
On March 30, 2020, Mayor Muriel Bowser issued an updated order (effective April 1, 2020), which introduces additional restrictions on personal movement. Like the preceding March 24 order, the revised order prohibits gatherings of 10 or more people, but the revised order also prohibits individuals in DC from leaving their residences, except to undertake “essential activity” or engage in “essential business.” All DC businesses, including non-essential businesses, are allowed to continue operating on a telework basis, provided their operation did not require individuals to make physical contact with other persons and could be conducted without violating social distancing requirements. As before, the order’s definition of “essential business” is modeled on a March 19, 2020 memorandum from the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”) Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, March 19, 2020 (“CISA Memo“).
The DC order encourages essential businesses to remain open and describes such business as:
• Healthcare and Public Health operations, which includes healthcare providers and suppliers and businesses that perform ancillary services (as defined by CISA Memo)
• Essential Infrastructure, including public works, street lighting, railways, government facilities; and utilities, such as electric power, telecommunications, water and sewage, and waste collection
• Food and Household Products and Services, including grocery stores, supermarkets, alcohol retail stores and suppliers, restaurants (though only for delivery or to-go services), laundry services and dry cleaners, and retail stores that sell products necessary to maintain the safety, sanitation, and operation of residences
• Social Services
• Communications and Information Technologies, including IT infrastructure and media services
• Energy and Automotive, including power suppliers and providers, auto repair shops, and suppliers and related facilities
• Financial Services, including banks, credit unions, and related financial institutions.
• Educational Institutions, though only to facilitate remote learning or to support COVID-19-related research or training
• Transportation and Logistics, including delivery businesses, taxis and ride-sharing businesses to provide transport for employees who work at essential businesses or who perform essential government functions
• Construction and Building Trades, including plumbers, electricians, roofers, carpenters, and other businesses that perform services necessary for the safety, sanitation, and operation of residences and essential businesses
• Housing and Living Facilities, including legal, insurance, notary public, tax and accounting, but only when necessary to assist in compliance with legally mandated activities or essential businesses or essential government functions
• Professional Services, prioritizing the needs of persons who work for essential businesses or carry out essential government functions
• Childcare Facilities, prioritizing the needs of persons who work for children of essential employees
The order also excepts activities related to “essential government functions,” and includes language that should be of interest to DC’s Government contracting community. Specifically, the Order excepts from the prohibited activities “services needed to ensure the continuing operation of government agencies and provide for the health safety, and welfare of the public performed by the District of Columbia or federal government or their contractors.” This provision is principally aimed at first responders, such as police, firefighters, and emergency medical services, but depending on the work being performed under agreements with federal or local Governments, it could arguably support the position that work being performed by contractors is permitted under the order.
Maryland Issues Updated Stay at Home Order (Effective for Indefinite Duration)
On March 30, 2020, Maryland Governor Larry Hogan issued a “stay at home” order prohibiting individuals in Maryland from leaving their residences (except to undertake “essential activity” or engage in “essential business”). As before, the revised order directs the closure of all non-essential business in the state, but it also introduces additional restrictions on personal movement and specifies a new list of specific non-essential businesses that must close. The Maryland Office of Legal Counsel published new guidance for the revised Order.
Consistent with the previous order, the revised order defines non-essential businesses as all those that are not part of the critical infrastructure sectors identified by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”). CISA’s list of critical infrastructure is available here. The order modifies some of the CISA sectors; for example, the order specifically directs closure of certain facilities, such as enclosed malls, casinos, betting facilities, and racetracks. The order states that any person who “knowingly and willfully violates this order is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both.” The revised Maryland Office of Legal Counsel guidance cites several new restrictions (e.g., prohibiting curbside pickup from non-essential businesses) but leaves unchanged prior guidance about which businesses are “essential.” Such businesses include:
- The Chemical sector, including pharmaceutical and chemical manufacturers and distributors
- The Commercial facilities sector, including lodging, building and property maintenance, janitorial firms, companies that sell supplies and materials for maintenance of commercial and residential buildings, laundromats and dry cleaners, commercial and residential construction, and self-storage facilities
- The Communications sector, including broadcasting companies and stations, Cable TV, Telephone and ISP
- The Critical Manufacturing sector, including the manufacture of steel, iron and aluminum products; engines, motors, turbines, generators, and power transmission equipment; earth-moving, mining, agricultural, and construction equipment; parts for water, electric, and telecommunications utility infrastructure; land, air, and water vehicles, and related parts; medical equipment; personal protective equipment; and cleaning and sanitation equipment and supplies
- The Defense Industrial Base sector (including companies that research, develop, manufacture, or integrate weapons, defense, or intelligence systems or assets; and private contractors that support defense and intelligence agencies
- The Emergency Services sector, including law enforcement, emergency medical, emergency management, fire and rescue, and private ambulance services
- The Energy sector, including electricity production; production, refining, storage, transportation, distribution, and sale of oil, gas, and propane products, including gas stations and truck stops; utilities maintenance services
- The Financial Services sector, including banks and credit unions, non-bank lenders, payroll processing companies, payment processing companies, armored car companies, insurance companies, securities and investment companies, and accounting and bookkeeping firms
- The Food and Agriculture sector, including food and alcohol retail stores and supply companies; farms; food manufacturing and processing; pet supply and vet; companies that manufacture, maintain, and sell agricultural equipment; and companies that manufacture or support the manufacturing of paper products)
- The Government Facilities sector, including private persons and entities that support the judicial system, such as lawyers and law firms, court reporters, and bail bondsmen
- The Health and Public Health sector, including hospitals and other health care providers, diagnostic facilities, health plan and billing companies, funeral homes and crematoriums, senior and assisted living facilities, manufacturers and distributors of medical equipment and supplies, medical cannabis producers and distributors, home health care companies, and pharmacies)
- The Information Technology sector, including companies that design, develop, distribute, host, sell, and support information; and companies that provide network routing, access, and configuration services
- The Transportation Systems sector, including airlines and airports, motor carriers and carriers of marine freight, transportation terminals, package delivery and courier services, warehouse and distribution companies, pipeline owners and operators, lessors of transportation assets such as railcars and truck trailers, companies that supply parts or maintain transportation assets, and automotive supply stores and repair shops
- The Water and Wastewater sector, including municipal, community, and other drinking water and wastewater systems and facilities; well drillers; companies that provide maintenance and inspection services for water and wastewater assets, including treatment works, residential water treatment systems, piping, pumps, tanks, drains, conveyances, and monitoring systems; and water testing companies
- Supporting Firms, including staffing / payroll companies; and essential raw materials, products and services
Regarding this list of essential businesses, the Guidance reiterates that the list is non-exhaustive. The fact that a particular business, organization, or facility is not included in the list does not mean it is excluded from the federal critical infrastructure sectors. The Guidance cites to the CISA guidance regarding what is and is not included in the federal critical infrastructure sectors. The CISA guidance describes “16 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.”
Virginia Issues Stay at Home (Effective Through June 10, 2020)
On March 30, 2020, Virginia Governor Ralph Northam issued a “Temporary Stay at Home Order” directing ”all individuals in Virginia [to] remain at their place of residence” except to engage in one of several permitted activities. This order, like the preceding March 23 order, also imposes temporary restrictions on the activities of certain organizations and businesses, including schools, restaurants, recreational and entertainment businesses, and non-essential retail businesses. Rather than shutting down all non-essential businesses and organizations (as in the case of the Maryland Order), the Order closes specified types of organizations. As before, the violation of applicable restrictions (other than those imposed on schools) “shall be a Class 1 misdemeanor pursuant to § 44-146.17 of the Code of Virginia.”
Impacting Everyone in Virginia
- All public and private in person gatherings of 10 or more individuals are prohibited.
Business/Operations That Must Close
- Recreational and entertainment businesses must be closed to all public access. These include theaters and performing arts centers, fitness and indoor sports facilities, businesses that perform personal grooming services, race tracks and historic horse racing facilities, amusement parks and fairs, and various “places of indoor public amusement” (such as bowling allies, skating rinks, etc.).
- Although schools are not businesses, all in-person instruction at K-12 schools, public and private, will remain closed for the remainder of the 2019-2020 school year. The impact on parents is mitigated by the order’s provision that facilities providing child care services may remain open.
“Essential retail businesses” Are Permitted to Remain Open
Such businesses are:
- Retailers that sell food and beverage products or pharmacy products (including department stores that include grocery or pharmacy operations)
- Medical, laboratory, and vision supply retailers
- Electronic retailers that sell or service cell phones, computers, tablets, and other communications technology
- Automotive parts, accessories, and tire retailers as well as automotive repair facilities
- Home improvement, hardware, building material, and building supply retailers
- Lawn and garden equipment retailers
- Beer, wine and liquor stores
- Retail functions of gas stations and convenience stores
- Retail located within healthcare facilities
- Banks and other financial institutions with retail functions
- Pet and feed stores
- Printing and office supply stores; and
- Laundromats and dry cleaners.
Virginia’s Government Contractors
- Virginia’s large government contracting community is not specifically addressed in the temporary restrictions order. To the extent such companies provide “professional rather than retail services,” they may remain open. In addition, the “operation of government” is expressly exempted from the restrictions. Government contractors whose products and services are necessary to essential government functions may be able to argue that their operations are exempted under that provision, but the order does not address this nuance.
Non-Essential Businesses Can Also Remain Open, But Are Subject to Specific Restrictions
- “Non-essential” retail businesses not specifically listed above may continue to operate but must limit all in-person shopping to no more than 10 patrons per establishment with “proper social distancing.”
Other Impacts of the Order
- Unlike other stay-at-home orders, Virginia’s temporary restrictions do not limit elective medical services or procedures; in fact, the order specifies that “[n]othing in the Order shall limit . . . the provision of health care or medical services.”
- Media businesses and, as noted above, government services are also unaffected by the order.
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