By Peggy Kirk Hall, Ohio Ag Law Blog, director of agricultural law, Ohio State University Agricultural and Resource Law Program
We’ve received several questions about Ohio’s Stay at Home Order and how it affects agricultural businesses. As you well know, the Order states that residents are to stay at home and may leave “only for Essential Activities, Essential Governmental Functions, or to participate in Essential Businesses and Operations.” All non-essential businesses and activities are to cease. It remains in place until the end of the day on April 6. Here are the relevant parts of the Order that answer the questions we’ve received:
What businesses are “essential”?
The Order lists (on pages 5 and 6) the “Essential Businesses and Operations” that may continue during this period. The list specifically includes many agricultural activities, such as:
12 b. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, prepared food, alcoholic and non-alcoholic beverages, any other household consumer products (such as cleaning and personal care products), and specifically includes their supply chain and administrative supp0rt operations. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-groce1y products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
c. Food, beverage, and licensed marijuana production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
h. Gas stations and businesses needed for transportation. Gas stations and auto supply, auto-repair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities;
o. Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delive1y, third-party delivery, drive-through, curbside pick-up, and carry-out…. This Order is consistent with and does not amend or supersede prior Orders regarding the closure of restaurants.
The list also includes many businesses that service and supply agricultural businesses, such as hardware and supply stores, shipping and delivery services, and financial and professional services.
Can employees travel to and for an “essential business”?
Yes. The Order allows (on page 2) residents to leave their homes to perform work at Essential Businesses or Operations. The Order also allows (on page 7) for “Essential Travel,” which includes “any travel related to the provision of or access to” Essential Businesses and Operations.
What precautions should I take for employees and others at my “essential business”?
First, the Order lays out (on page 8) several required measures that Essential Businesses must follow:
15 a. Required measures. Essential Businesses and Operations and businesses engaged in Minimum Basic Operations must take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:
Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
Second, the Order also includes (on pages 8 and 9) a COVID-19 Information and Checklist for Businesses/Employers that requires businesses and employers to take the following actions. We encourage employers to read these provisions carefully:
Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
Reinforce key messages, stay home when sick, use cough and sneeze etiquette, and practice hand hygiene to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
Be prepared to change business practices if needed to maintain critical operations (e., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
What is “social distancing,” exactly?
There’s been a lot of talk about social distancing. The Order requires residents to practice social distancing when outside of their residences and defines (on page 15), exactly what it means:
15. Social Distancing Requirements. For purposes of this Order, Social Distancing Requirements includes maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.
Who’s enforcing the Order?
The Order also addresses enforcement (on page 8), stating that:
17. Enforcement. This Order may be enforced by State and local law enforcement to the extent set forth in Ohio law. To the extent any public official enforcing this Order has questions regarding what services are prohibited under this Order, the Director of Health hereby delegates to local health departments the authority to answer questions in writing and consistent with this Order.
Note, however, that Governor DeWine (on Twitter) has encouraged businesses not to overwhelm law enforcement or local health departments with questions and advice on what’s “essential,” but instead to “use your own good judgment of that order to make your own determination if you are essential.”
Are there recordkeeping requirements?
No. But we attorneys always advise agricultural operators to keep good records. Governor DeWine agrees, as he has stated (on Twitter) that businesses should “create a document about why you believe you are an essential business and how you are providing a safe workplace.” If there is a question in the future about what you did or did not do during this important period, be sure that you have documentation to back it up. As always, documentation includes not only written information but also photographs and videos.
We encourage readers to carefully review the Stay at Home Order, which is available here on Ohio’s coronavirus.ohio.gov website. OSU also has a site with COVID-19 resources, available here on https://u.osu.edu/2019farmassistance/covid-19/.