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COVID-19: Can Non-Essential Businesses Operate?

COVID-19: Can Non-Essential Businesses Operate?

Best Ohio Employment Attorney Reply: Can I be forced to come into work for a non-essential business during the Coronavirus outbreak? What businesses are considered essential during the Coronavirus pandemic? Does the company that I work for qualify as an essential business? Does my employer have to abide by the stay-at-home order? Can I be fired for refusing to go to my job if I don’t want to catch the virus?

Governor Mike DeWine issued an executive order on March 23, 2020 to compel Ohioans to stay at home unless they are employed or otherwise engaged in an essential work or activity in a hope to reduce the spread of the Coronavirus. This order effectively tells businesses that are deemed non-essential to cease operations and Ohioans should not leave their homes except for a limited scope of purposes such as to gather supplies from grocery stores or to perform tasks otherwise necessary for their family’s health and safety, participate in outdoor activities like walking and hiking, or to perform their work duties if those duties are deemed essential. For more general information about employee rights during the COVID-19 crisis and Coronavirus pandemic, check out what the top Ohio employment attorneys have to say in some of our previous blogs. (See: COVID-19 Employment Lawyer: Tips Aren’t Cutting It; Overtime Wages: Coronavirus Employment Law Frontlines; Law: What Is The Family First Coronavirus Response Act?; and Can My Boss Make Me Work At Home Because Of The Coronavirus?)

So what employers are considered essential businesses? They include:

  • Agriculture businesses;
  • Animal care – veterinary care and other healthcare services for animals;
  • Animal Shelters, rescues, kennels and adoption facilities;
  • Auto supply and repair;
  • Businesses that supply equipment or materials needed by other essential business;
  • Businesses that supply products needed for people to work from home;
  • Construction – Hospital construction, long-term care facility construction, public works construction, school construction, essential business construction, and housing construction;
  • Critical trades – plumbing, HVAC, extermination, electricians, etc. providing services for residences and other essential business;
  • Educational institutions – for the purpose of providing education through social distancing;
  • Financial entities and institutions, including banks;
  • Food and beverage manufacturers, producers, processors and cultivators;
  • Food banks;
  • Funeral services;
  • Gas stations;
  • Government workers and first responders – emergency management personnel, emergency dispatchers, legislators, judges, court personnel, jurors and grand jurors , law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and government employees working for or to support another business deemed essential.
  • Grocery stores;
  • Hardware and supply stores;
  • Healthcare – emergency rooms, hospitals, clinics, dental offices (for emergency services), pharmacies, organizations collecting blood, platelets, plasma and other necessary materials, licensed medical marijuana dispensaries and cultivation centers, obstetricians and gynecologists, eye care centers including those that sell glasses and contacts, home healthcare service providers, mental health providers, substance abuse providers, companies involved in pharmaceutical, medical device and equipment, and biotechnology, businesses that compile, model, analyze and communicate public health information, manufacturers, technicians, logistics and warehouse distributors of medical equipment and supplies;
  • Home-based care and services – nannies, meal delivery, care for adults, children, seniors and those with disabilities;
  • Hotels and motels;
  • Insurance Companies;
  • Labor unions;
  • Laundry services;
  • Legal services (Yes, our employment lawyers are still working hard);
  • Maintenance – building management and maintenance, Utility maintenance, including water, sewage, gas, and electrical, public transportation, roadways, highways and railroads;
  • Media;
  • National defense;
  • Non-profit organizations, social services and shelters;
  • Operations – airport operations, utility operations, distribution centers, internet, video and telecommunication systems;
  • Petroleum and fuel mining;
  • Post offices;
  • Real estate services;
  • Religious organizations and facilities, but not for groups and gatherings;
  • Residential facilities and shelters;
  • Restaurants implementing carry-out or delivery services;
  • Shipping and delivery companies;
  • Stores that provide or sell prescription medicine, over the counter medicine, sanitary and safety products;
  • Transportation – airlines, taxis, marinas, vehicle rental services, Uber and Lyft;
  • Transportation repair; and
  • Waste pickup.

This list is pretty extensive, although if you have a question as to the status of your employer and whether they are essential or not, don’t hesitate to call the right attorney for clarification. This means that most stores that don’t provide a service that is necessary for survival will likely remain closed during the stay-at-home order. If you are an employer of one of these locations you will likely be asked to remain home from work, be subjected to furlough (time off), or will see a very limited number of hours at the very least.

According to Cleveland.com, Hobby Lobby has reopened many of its stores across the nation and this includes every location in Ohio, despite being the provider of mostly craft supplies (certainly not an essential product). There are Hobby Lobby locations in Mentor, Solon, Macedonia, Stow, Fairlawn and Medina. Governor DeWine expressly cautioned businesses that defying the stay-at-home order is a violation of the law and could hold potential criminal sanctions. However, local police are quoted saying that it is unlikely they will issue citations as they would prefer to work with everyone to come to the best outcome without any unnecessary fines. In fact, according to Cleveland.com, the police to responded to the reopening of a Hobby Lobby in Wisconsin and forced them to shut down within an hour of them opening without any resistance or fines being issued. This could mean that businesses that defy the order will be able to continue operating without any real threat of criminal citations. However, this does not mean that employees are without protection. Our employment lawyers are standing by ready to help you with claims of for wrongful termination, whistleblower violations, FMLA interference or retaliation, and public policy claims for retaliation.

Because Hobby Lobby is remaining open, the employees are put in an impossible position to make a very hard choice. The employees can either decide to go to work and risk exposure to the virus or they can refuse to work and lose their job. One anonymous employee, who is being forced to report to work said, according to Cleveland.com, “My wife is pretty furious. We’re trying to take care of my mother who had knee surgery and also has multiple sclerosis, which is an autoimmune disease. I don’t want to bring it home and get her infected… I used to love working for this company, but since this pandemic, I’ve seen how callous and irresponsible it has been.”

So, what legal recourse does this employee at Hobby Lobby have? Can your boss make you come to work anyways despite a stay-at-home order? The short answer is no, but you cannot stop there because you want to ensure that your employment is protected from any retaliation from your employer. The answer to this question is also addressed in one of our previous blogs. (See: Can My Boss Make Me Come To Work During Stay-at-home-order?).

As the top Ohio employment law attorneys have blogged about in the past, employees who report illegal activity at work may risk retaliation by their employers including wrongful termination. (See:  What Protections Do I Have As A Whistleblower?;

Can I Be Fired For Reporting Financial Fraud At My Company?;

Can I Be Fired For Reporting A Customer’s Illegal Acts?). However, it should be noted that, in Ohio, the whistleblower statute is strict in certain respects that the complaint has to be in writing.

If you are being forced to report to work during this uncertain time and your business is not deemed essential, it is possible to make a complaint and cite that being forced to work in defiance of a stay at home or shelter in place order certainly qualifies as “endangering the public’s health” as stated in Ohio Revised Code §4113.52. Again, it is important that any complaint made is in writing to avoid any argument that no complaint was ever submitted.

After complaining, your employer has three options. First they can comply with the stay at home order which they should have done in the first place, second, they can ignore the complaint which should prompt you as an employee to call the top Ohio employment law lawyers before taking any more steps such as quitting, and third, your employer can retaliate with an adverse employment action such as wage reduction, suspension, or discharge. In the third scenario, you will have a valid claim for retaliation in violation of the law.

As the stay at home order continues to be extended, more stories like Hobby Lobby will likely continue to be reported as employers will seek to continue their business and make money. However, they should be cautious to follow the law which is put in place to help end the COVID-19 emergency.

If you feel that you’ve been retaliated against or denied your rights in response to COVID-19, the employment discrimination attorneys at The Spitz Law Firm would like to hear from you.  Even if you are not sure about your claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation.

COVID-19: Can Non-Essential Businesses Operate?

Disclaimer:

This employment law website is an advertisement. The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can I be forced to work during the Coronavirus pandemic”, “What should I do my company refuses to close despite the Governor’s order,” “My manager retaliated against me for refusing to come to work sick” or “I was fired during the Coronavirus epidemic”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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