Practice Group: Business Law & Transactions

Most of us know, that to deal with the Coronavirus pandemic, governments have ordered certain businesses to close. Three or so weeks ago, few imagined that the world would be turned on its head. The global pandemic is a different kind of crisis. Businesses are struggling to determine what they can do when life might return to any kind of normal and how to get from here to there.

Obviously, most important is to do everything possible to protect yourself, your family and your employees.

But while doing so:

WHO CAN WORK?

In Maryland, anyone who can work at home or remotely and those engaged in “essential” jobs and industry sectors; non-essential businesses were ordered closed to the general public (see more on this later) by Order of the  Governor on Monday, March 23, 2020.  A list of essential businesses has been compiled by the Department of Homeland Security and the list is available here.

The list is not exhaustive and States have and may issue further guidance. Maryland has done so by means of an Interpretive Guidance from the Governor’s Office of Legal Counsel also dated March 23. The Guidance clarifies and enumerates many more specific industries, businesses and occupations which it considers exempt. The guidance is available here.  This guidance permits many businesses in Maryland open to the general public, to continue operations. This Guidance was itself updated on the same date, March 23, to add additional exempt businesses, including print shops, security companies and title companies – see here.

There are many ambiguities in the Guidance. What constitutes a “construction company” for instance. Are subcontractors, fabricators, and materialmen exempt?  Big Box suppliers are exempt but what about the little guy? Many in those businesses and professions have taken the position that since they are companies that “sell supplies and materials for maintenance of commercial and residential buildings,” they are exempt.

However, there is some danger in broadening the interpretations. If convicted of a “willful and knowing” violation of the Governor’s Order, a violator may receive a $5,000 fine or face one (1) year imprisonment.

If your client or your company believes that its business should be exempt, but the matter is a “close call,”  an interpretation may be requested from the Maryland Emergency Management Agency, which has 1) created an email address, psector@maryland.gov, to which questions can be sent, and 2) developed a fillable .pdf. form, fileable online. Here is the link. The Agency promises a response within 48 hours.

Importantly, the Governor’s March 23 Order closes non-essential businesses to the general public.  The implication of this and informal advice provided by the Governor’s Office of Legal Counsel is that non-essential businesses, which do not deal with the general public, are not required to close.  Those businesses should of course strictly follow the advice of health experts, including advice regarding working remotely when feasible, social distancing, limiting large meetings and keeping workplaces clean and sanitized.

Stay tuned for more.

Bob Kresslein and Glenn Solomon contributed to this Article.

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