On Wednesday, April 1, 2020, Governor Tate Reeves announced that Executive Order 1466 (“E.O. 1466”) will go into effect on Friday, April 3 at 5 p.m. and remain in effect until Monday, April 20 at 8 a.m. E.O. 1466 is a shelter-in-place order, also referred to as a stay-at-home order. As the name implies, it orders residents to stay within their residencies, but it is subject to exceptions. Important points from E.O. 1466 include:
- Essential businesses and operations “may remain open and shall operate as necessary to provide essential services and functions.” While these businesses are not subject to the prohibition on social gatherings in excess of 10 persons, they should take reasonable measures to comply with the Centers for Disease Control and Prevention (“CDC”) and Mississippi Department of Health (“MDOH”) recommendations, e.g., social distancing. Essential businesses and operations are defined by Executive Order 1463 and the Supplement to Executive Order 1463 (collectively “E.O. 1463”). The definition of essential businesses and operations is discussed below.
- Non-essential businesses and operations are prohibited from operating except for performing minimum operations. Minimum operations are those operations necessary for the business to maintain the condition of its facilities, premises and equipment, value of business inventory, administer payroll and employee benefits, provide security, and facilitate remote working.
- Essential activities by residents are permitted, and include performing tasks such as buying groceries, working for an essential business, caring for someone in a vulnerable population, and individual outdoor recreation, e.g., walking or running. People who are outside for exercise must follow social distancing guidelines of maintaining at least a 6-foot distance and groups of 10 or less.
- Essential travel by residents is permitted, and includes travel related to an essential business or operation, an essential activity, care for dependents, minors, elderly, disabled, or otherwise vulnerable persons, picking-up distance learning materials from an educational institution, to and from place of residence, or that required by law enforcement, court order, or child custody arrangement.
- Expressly prohibited activities include social and non-essential gatherings in excess of 10 persons where individuals are less than six feet from one another, and operating indoor and outdoor places of amusement and recreation, such as museums, movie theaters, playgrounds, children’s parties, social clubs, and parks including all beaches, lakes, and reservoirs (but not walking trails). These are mandated closed. Dine-in service at restaurants and bars is also prohibited, but restaurants and bars may remain open only for drive-thru, curbside pick-up, or delivery service.
- Evictions are suspended, but individuals are not relieved of contractual obligations to pay rent, mortgage, or otherwise comply with other obligations of their tenancy or mortgage contract.
The Order provides that it may be enforced by all state, county, and local law enforcement, as well as other government entities, and that violations are subject to Miss. Code Ann. § 33-15-43, which provides for a fine of up to $500 or imprisonment not to exceed six months, or both. Nothing in E.O. 1466 prohibits a local government from taking more restrictive action except that it may not prevent an essential business or operation “from operating at such level necessary to provide essential services and functions.”
An important initial question raised by many residents is what constitutes an “essential business or operation.” E.O. 1463 defines this term by providing 19 categories of essential businesses and operations. Although E.O. 1463 provides more specificity to the list below by providing specific examples of businesses that fall within each category, the categories are, in brief:
- Essential government functions such as those related to public safety, health, and corrections.
- Essential healthcare operations such as hospitals, laboratories, and nursing homes. The term is meant to be construed broadly but does not include gyms, spas, salons, barber shops, and similar personal care and grooming facilities.
- Essential infrastructure such as power generation, fuel and transmission, communications networks, and airports.
- Manufacturing such as food processing and production, medical equipment, and household products.
- Agriculture and farms such as food cultivation, livestock, gas, diesel, and farmer’s markets.
- Essential retail such as supermarkets, pharmacies, and hardware.
- Essential services such as trash collection, mail services, home repair, automotive sales and repair, laundromats/laundry service, and warehouse, distribution, and fulfillment centers.
- Media such as newspapers, television, digital, and radio.
- Education such as educators supporting distance learning, performing critical research, or providing free and reduced meals.
- Financial services such as banks, insurance, and accounting.
- Professional Services such as legal services, accounting, insurance, and real estate.
- Providers of basic necessities to economically disadvantaged populations (e.g., non-profits, businesses, and churches providing these necessities).
- Construction and construction related services such as building and construction, lumber, electricians, cleaning and janitorial, or skilled trades.
- Essential services necessary to maintain safety and sanitation of essential businesses and operations and residencies.
- Defense Industrial Base including businesses and workers who provide essential products and services required to meet national security commitments to the Federal Government and the U.S. Military.
- Vendors providing essential services and products needed to ensure the continued operations of essential businesses and operations, government, and provide for the health, safety, and welfare of the public.
- Religious entities, provided they adhere to CDC and MDOH guidelines.
- Categories of workers identified by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (“CISA”) in its “Memorandum of Identification of Essential Critical Infrastructure Workers During COVID-19 Response.” Note CISA updated its guidance over the weekend of March 28, 2020.
- Other categories as deemed necessary by MDOH, Mississippi Emergency Management Agency, or other state agency
If you have questions about any of the above, including whether your business qualifies as an essential business or operation, it is recommended you read E.O. 1463, the Supplement to E.O. 1463, and E.O. 1466, all of which provide more specificity, and also consult with an attorney.