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What is "critical and essential"?

Mar 26, 2020

More and more states, counties and municipalities are issuing “stay-at-home” orders or directives recommending, and sometimes requiring:

  1. non-essential travel be limited;
  2. non-essential businesses temporarily close; or
  3. people generally remain at home.

Each government instruction is somewhat different, but the common theme in each of these orders is an exemption for critical infrastructure activities and initiatives that are needed to respond to the COVID-19 pandemic and ensure access to other critical and essential services, such as food, healthcare, communications infrastructure, transportation and logistics of those goods and service. Companies and individuals that provide “critical and essential” services now face a confusing and fast-moving landscape of potentially overlapping “stay-at-home” orders and directives. Many states now require that individuals or entities that believe they are exempt either request an exemption or provide some form of justification of their exempt status, such as a letter attesting to the “critical and essential” nature of the service they perform. Careful analysis of the state and local application of these orders is required. 

Waller has been actively analyzing these orders as they are issued, as well as federal guidance. Some states are allowing these orders to be issued by cities and other municipalities, others are being issued at the state level, and still others are issuing overarching orders that provide a framework around which localities can issue their own orders. Companies and individuals that qualify under one of the exemptions should be able to continue to do business, but must ensure that they qualify for an exemption, obtain the necessary permissions, if required, or provide the written justification to their employees to present attesting to the “critical and essential” nature of their business. This is particularly important for companies with mobile operations that may have their employees stopped and questioned by law enforcement enforcing these “stay-at-home” orders. 

For additional information, please contact Bob Boston, JD Thomas or Nicole Watson.

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