On March 27, 2020, North Carolina Governor Roy Cooper issued an Executive Order instructing residents to stay at home unless leaving for certain essential reasons.  As part of the Executive Order, the governor also ordered business to cease non-essential business and operations.  The Order will go into effect on Today, March 30, 2020 at 5:00 pm and will last for thirty (30) days.  The Governor’s Order follows similar orders previously implemented by other states and multiple municipalities and counties within North Carolina, including Guilford County and Greensboro.  Importantly, where the local orders and the state-wide Order differ, the more restrictive order will take precedent.

The Executive Order applies statewide, and orders individuals to stay at home unless they are engaging in certain essential activities and certain non-essential business to temporarily cease most operations in their workplaces.  The Executive Order also temporarily prohibits mass gathers of more than ten (10) individuals.  As with many of the local orders in place, violations of the Executive Order are a Class 2 misdemeanor.

Essential Businesses 

In order to slow the spread of COVID-19, the Executive Order requires non-essential businesses to cease all but the “Minimum Basic Operations” (as defined in the Order) at their physical workplaces.  The Executive Order makes clear that non-essential businesses “may continue operations” that can be performed by employees at their own residences.

The Executive Order encourages all “Essential Businesses and Operation” to continue operating to the extent possible. The following industries and businesses are considered “essential” for the purposes of the Executive Order:

• Businesses that are able to meet the Social Distancing Requirements between its employees and between employees and customers (except at a point of sale or purchase);
• Business in industries and sectors designated as critical by the Cyber Infrastructure Security Agency (“CISA”). A revised list of designated industries and sectors can be found here.  In addition to the previously discussed industries, CISA’s revised guidance adds Commercial Facilities, Residential/Shelter Facilities and Services, and Hygiene Services and Products to the list of critical industries;
• Healthcare and public health operations;
• Human services operations, including long-term care facilities, child care centers, and businesses that provide food, shelter, social services, transportation, and other necessities of life for economically disadvantaged individuals;
• Essential infrastructure operations, including food and beverage production, distribution, fulfillment centers, storage facilities; construction; building and grounds management and maintenance including landscaping; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical; distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video and telecommunications systems;
• Essential government operations;
• Stores that sell groceries and medicine;
• Food, beverage production, and agriculture, including businesses that provide food, shelter, services, and other necessities of life for animals, including animal shelters, kennels, and rescues.
• Organizations that provide charitable and social services to needy individuals, individuals with disabilities, or individuals who need assistance as a result of the current COVID-19 outbreak;
• Religious entities;
• Media;
• Gas stations and businesses needed for transportation;
• Financial and insurance institutions;
• Home improvement, hardware, and supply stores;
• Critical trades, such as building and construction tradesmen and tradeswomen, and other trades, including but not limited to, plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, cleaning services, moving and relocation services, landscaping and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and essential businesses;
• Mail, post, shipping, logistics, delivery, and pick-up services;
• Educational institutions for purposes of facilitating remote learning;
• Laundry services;
• Restaurants for consumption off-premises;
• Businesses that provide supplies to work from home;
• Businesses that provide supplies to other essential businesses;
• Transportation;
• Home-based care and services;
• Residential facilities and shelters;
• Professional services such as legal services, accounting services, insurance services, professional engineering and architectural services, land surveying services, real estate services, and tax preparation services.
• Businesses that manufacture, distribute, or are part of a supply chain for critical products and industries including pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, communications, as well as products used or commonly sold by other essential businesses;
• Defense and military contractors;
• Hotels and motels;
• Funeral services;
• Additional essential retail, which includes electronic retailers that sell or service cell phones, computers, tablets, and other communications technology; lawn and garden equipment retailers; book stores that sell educational material; beer, wine, and liquor stores; retail functions of gas stations and convenience stores; retail located within healthcare facilities; and pet and feed stores.

Businesses that qualify as essential are still expected to maintain, to the extent practicable, the Social Distancing Requirements detailed in the Executive Order, and explained below.

Additionally, the Order defines many of these categories broadly.  For example, construction includes, but is not limited to, construction required in response to this public health emergency, hospital construction, construction of long term care facilities, public works construction, school construction, and essential commercial and housing construction.  While craft trades includes a wide range of trades related to building and construction, including but not limited to, plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, cleaning services, moving and relocation services, landscaping and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and essential businesses;

Businesses that are excluded from the list of Essential Businesses and Operations may petition the North Carolina Department of Revenue, if they believe that they may be essential. Additionally, non-essential businesses are still allowed to carry out minimum basic operations from the work place, so long as such operations can be carried out while complying with the state’s Social Distancing Requirements to the extent possible. Minimum basic operations are defined as including (1) the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or related functions; and (2) the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

Restrictions on Individual Movement 

In addition to ordering non-essential businesses to temporarily cease operations, the Executive Order also instructs individuals to stay at home unless they are performing an “Essential Activity.”  Essential activities include:

• Engaging in activities essential to health and safety, such as seeking emergency services, obtaining medical supplies or medication, or visiting a health care professional or veterinarian;
• Engaging in activities for necessary supplies and services, such as purchasing groceries or food, household consumer products, supplies to work from home, automobile supplies, and products necessary to maintain the safety, sanitation, and essential operations of residences and Essential Businesses;
• Engaging in outdoor activities, such as walking, running, hiking, golfing or biking, so long as individuals comply with the Order’s social distancing requirements while so doing. Note that public playgrounds are closed and not available to visit under the Order;
• Engaging in travel related to, or to and from, an Essential Business;
• Engaging in activities to provide care to others;
• Traveling to and from a place of worship;
• Engaging in activities to receive goods and services;
• Traveling to or from an individual’s residence for purposes such as child custody or visitation arrangements; and
• Volunteering.

The Executive Order also temporarily bans private and public mass gatherings of more than ten (10) people.  Funerals are exempted by this restriction, but still must be limited to no more than fifty (50) people and must observe the Order’s social distancing requirements to the extent practicable.

Social Distancing Requirements

The Executive Order requires individuals and businesses to comply with certain social distancing requirements when engaging in essential activities or business operations.  The Executive Order’s social distancing requirements include:

• Maintaining at least six ( 6) feet distancing from other individuals;
• Washing hands using soap and water for at least twenty (20) seconds as frequently as possible or the use of hand sanitizer;
• Regularly cleaning high-touch surfaces; and
• Facilitating online or remote access by customers if possible.

Should you have any questions about how the Executive Order applies to your business please contact Nathan Duggins at nduggins@tuggleduggins.com  or (336) 271-5246, Ross Hamilton at rhamilton@tuggleduggins.com or (336) 271-5279, Alan Felts at afelts@tuggleduggins.com or (336) 271-5240, or Daniel Stratton at dstratton@tuggleduggins.com or (336) 271-5240. Please also follow our Twitter account @TuggleDuggins at https://twitter.com/TuggleDuggins  for continuing, up-to-date information related to navigating the law during the COVID-19 outbreak.

© 2020 Tuggle Duggins P.A. All Rights Reserved. The purpose of this bulletin is to provide a general summary of significant legal developments. It is not intended to constitute legal advice or a recommended course of action in any given situation. It is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature. Moreover, information contained in this bulletin may have changed subsequent to its publication. This bulletin does not create an attorney-client relationship between Tuggle Duggins P.A. and the recipient. Therefore, please consult legal counsel before making any decisions or taking any action concerning the issues discussed herein.