It's Tuesday, right? Given how this week is going I will not be surprised if this is what I look like on Friday:
Harris County has FINALLY issued its written order and it is worded slightly differently than the Dallas County order or even the Galveston order issued yesterday. It goes into effect on at 11:59 PM this evening and stays in effect until 11:59 PM, April 3, 2020.
Am I an Essential Business?
Click here for a link to a .pdf of the order. It is complicated and its definition of essential business is rather broad. Accordingly, I would not assume that your business is NOT essential until you read the order and make your own determination.
If you would like some guidance, I would be glad to provide assistance. In addition, many local trade associations have been following this closely and can tell you whether it applies to your particular industry.
What Happens With My Employees?
If you are not an essential business and your employees cannot work from home, then you have a decision to make about whether you want to continue to pay them during this Stay Home Stay Safe shut down or not.
You may recall the Emergency Leave Laws passed by Congress last week. I blogged about them here if you need a refresher (because at this point Monday seems like a long time ago). At first glance, these laws seem to be tailor-made for this sort of shut down.
However, these emergency pay laws do not go into effect until April 2, 2020 (one day before this order is scheduled to end--but it may get extended). Moreover, attorneys reviewing this legislation have concluded that the Stay Home Stay Safe order WILL NOT trigger an employer's obligation under the Emergency Paid Sick Leave Act (PLSA). My employment lawyers of choice from Martin, Disiere, Jefferson, and Wisdom, LLP have offered the following:
As previously reported, the new paid sick leave act – which goes into effect on April 2 – provides sick leave for a half dozen reasons, including when an employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
The new act does not define what a quarantine or isolation order is, but the CDC has provided guidance. The CDC has stated that an isolation order is issued to a person who has "a communicable disease" to separate him/her from those who are healthy. Isolation restricts the movement of "ill persons" to help stop the spread of certain diseases. A quarantine order is similar, but it restricts the movements of a person who "ha[s] been exposed to a communicable disease." www.cdc.gov/quarantine/pdfs/...
As a result, we do not believe that the recent stay at home orders issued by Dallas, Travis and Harris Counties – and others – trigger paid sick leave.
So, the employees could use their own paid time-off (if available) or go unpaid for the period of the shut-down.
Is There Any Insurance Coverage for This?
Unfortunately, we have yet to discover an insurance policy that will provide any business income coverage or extra expense coverage in response to this Stay Home Stay Safe order. Your standard business income and extra expense coverage is only triggered in the event of a some sort of covered loss or occurrence. Most likely, some direct damage to your site is going to be required. In addition, most carriers have adopted exclusions that exclude coverage for damages due to viruses.
Are We Still Open?
FINALLY, as a broker of insurance services, Adams Insurance is considered an essential business. Through a combination of onsite personnel and employees working from home, we expect to be able to operate in a normal fashion throughout the period of the Stay Home Stay Safe Order. Please contact us as you normally would!