WHAT MAKES A BUSINESS ESSENTIAL?
State and local governments across the country are increasingly ordering that only “essential businesses” remain open in response to the COVID-19 pandemic. Some officials are instituting “shelter-in-place” orders, while others are calling their directives “stay-at-home” orders. The directives differ by location, but generally authorize “essential businesses” to remain open. These orders have caused employers to question what an “essential business” means in each jurisdiction as civil penalties could result from not following executive orders. This page offers resources:
– A link to the OAAA Webinar
– A link to the Federal guidelines
– A link to a comprehensive website that provides updated information on every state’s response
– Samples of stay-at-home orders
– A template that explains the building blocks of declaring an OOH media company an “essential business”
The OOH Industry Response to ‘Stay at Home’ Webinar can be accessed here.
Federal guidelines give states and local authorities leeway in what they consider “essential businesses” during emergencies. But generally, those businesses include: grocery stores, food production, pharmacies, health care, utilities, shipping, banking, government service employees, law enforcement, emergency personnel and media. The Cybersecurity and Infrastructure Security Agency (CISA) released a list of 16 Essential Critical Infrastructure sectors “who conduct a range of operations and services that are essential to continued critical infrastructure viability.” This list is not binding on states but is intended to provide guidance for state officials when determining which businesses are “essential.”
A compilation of state-by-state actions is accessible at by clicking here. Please check for updates daily and contact OAAA regarding your specific facts and circumstances. Here are a few notable state determinations
Overall: The enforcement of Governor Newsom’s order does not appear to be strictly imposed at this time.
Exemption Request: California does not have a specific form that businesses can fill out to request designation as an essential business. Governor Newsom’s order provides that in consultation with the Director of the Governor’s Office of Emergency Services, Governor Newsom may designate additional sectors as critical in order to protect the health and well-being of all Californians. Enforcement pursuant to the order: The order is enforceable pursuant to Government Code section 8665, a person who refuses or willfully neglects to obey the order shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six (6) months or by both such fine and imprisonment.
Law enforcement throughout California has made it clear that, at this time, there is no desire to take a criminal justice approach to what is a public health issue. Law enforcement seems to be hopeful that compliance will be voluntary.
In addition to California’s list of essential critical Infrastructure workers, which closely mirrors the Federal list, “essential services” in California include gas stations; pharmacies; food: grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants; banks; laundromats/laundry services; and essential State and Local government functions, including law enforcement and offices that provide government programs and services.
Overall: The state is silent on specific enforcement measures but the Governor stated that the repeat violators of the order could lose business licenses and even be criminally liable.
Enforcement pursuant to the order: This order may be enforced by State and local law enforcement
Exemption Request: Illinois does not have a specific form that businesses can fill out to request designation as an essential business. Illinois Gov. JB Pritzker issued the stay-at-home order in response to the novel coronavirus (COVID-19) pandemic starting 5 p.m. March 21 and ending April 7. The language in regarding “essential businesses” is similar to the language in other orders that distinguish between essential and non-essential businesses.
Overall: It seems that the enforcement of Governor Wolf’s order will be more strictly imposed than other states, such as California.
Enforcement pursuant to Pennsylvania laws: Businesses that are not designated as “life sustaining” that violate the order may be fined under the Disease Control and Prevention law and/or the Administrative Code. Under the Disease Control and Prevention law, violators will be sentenced to pay a fine of no less than $25 and no more than $300. Failure to pay any fine under this law could lead to imprisonment in the county jail for no more than 30 days. Under the Administrative Code, violators will be sentenced to pay a fine of no less than $10 and no more $50 to the county where the violation was committed.
Waiver request: Businesses that are not currently designated as “life sustaining” in Pennsylvania can request a waiver by following this link and filling out the waiver request form. Pennsylvania Governor Tom Wolf ordered all “non-life-sustaining” businesses to close. A listing of qualifying businesses can be found here. The Outdoor Advertising Association of Pennsylvania (OAAP) requested further clarification from state officials regarding the outdoor advertising status.
Overall: Enforcement pursuant to order: “…Any business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law.”
Under this section, violators will be liable for a civil penalty of not to exceed $2,000 for every violation. This amount may be increased to an amount not to exceed $5,000 for a subsequent violation within 12 months of the initial violation and said violations were a serious threat to the health and safety of an individual(s). This amount may be increased to an amount not to exceed $10,000 if the violation directly results in serious physical harm to any patient(s). o Note: After April 1, 2020, penalties may be recovered by a court order, by an action brought by the commissioner.
Exemption request: The New York State Department of Economic Development issued guidance on definitions of “essential business” and the agency will allow requests from businesses to include their business operations under the definitions, via the designated form. New York’s list does not mirror the federal one as closely as California. The 12 categories of “essential businesses” in New York are health care operations; infrastructure; essential manufacturing; essential retail; essential services; news media; financial Institutions; providers of basic necessities to economically disadvantaged populations; construction; defense; and essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential business. The guidance issued by the New York State Department of Economic Development provides more specific examples of “essential businesses” within each category.
Exemption Granted to Lamar in New York: Read Special Report Here
TEMPLATE BUILDING BLOCKS FOR DECLARING BUSINESS ESSENTIAL
Some governments, such as New York State, have said that out of home media is considered essential. Here are four building blocks to support the reasoning that out of home media can be deemed an essential business.
OOH IS A MEDIUM
Under most of the “stay-at-home” Executive Orders, media is specifically designated as an essential business. Out of home is a medium.
As a medium, out of home is an integral part of the nation’s communications fabric. The US Supreme Court, in Metromedia v. City of San Diego, said:
“Billboards are a well-established medium of communications, used to convey a broad range of different kinds of messages. The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas…outdoor signs have played a prominent role throughout American history, rallying support for political, and social causes.”
OOH COMMUNICATES IMPORTANT MESSAGES FOR THE GOVERNMENT
As a recognized medium, out of home communicates important messages for government.
As a current example, out of home displays deliver public health information authorized by the Centers for Disease Control and Prevention (CDC) as well as state and local authorities. (Include examples) Digital technology means government messaging — for public health and safety — is quick and nimble.
OOH COMMUNICATES FOR OTHER ESSENTIAL BUSINESSES
Government stay at home orders typically specify other essential businesses, such as banks, medical care, groceries, hardware stores, and gas stations. As a medium, out of home communicates on behalf of essential businesses (We’re Open, We Deliver, We’re Hiring).
IT’S PROPORTIAL … NOT ALL EMPLOYEES LEAVE HOME
The public-policy goal of stay at home orders is to isolate people in order to slow the spread of the coronavirus.
Businesses deemed essential recognize that not all workers are critical to essential functions and do not need to travel or report to offices to carry out their duties.
New York State (via its Empire State Development) clarifies this point:
– A leading out of home media company is an essential business
– The designation as an essential business refers to “those employees that must be present at the business location in support of essential business activities.”
Contact Kerry Yoakum at [email protected] if questions.
Post Published September 8, 2022