At 5:00 p.m. yesterday, March 23, 2020, Maryland Governor Hogan’s Executive Order closing all non-essential businesses to the general public took effect. The language of the Order was definitive, but the practical impact on businesses less so.
At our behest, the Maryland Chamber of Commerce obtained further clarification from the Governor’s office on how this Order affects businesses, as follows:
Employees of non-essential businesses may still telecommute. According to our sources, the Order was not intended to prevent telecommuting. It is important to note that the Order closes non-essential businesses “to the general public.” This qualification is important – non-essential businesses are not entirely shut down. Rather, they should not be accessed by the public.
Employees may come into the workplace – with restrictions. Again, the Order simply closes the non-essential business “to the general public.” Our sources confirm that employees – whether for a non-essential or essential business – may still access the workplace, as necessary. The Governor’s office reminds employers to ensure that any such employees are observing appropriate social distancing protocols (e.g. staying 6 feet apart, having no more than 10 people in a gathering). We reiterate that, in accordance with prior guidance from government officials, employees who can telecommute should be permitted to do so.
The Order is not a quarantine or isolation order. As many of you know, the newly-enacted Families First Coronavirus Response Act (which will take effect no later than April 2, 2020 and which we discuss in great detail in our COVID-19 FAQs), will provide 10 days of paid sick leave where “The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19” or is caring for a family member subject to such an order. A quarantine or isolation order has a very specific definition under Maryland law, requiring a “directive” from the Maryland Secretary of Health that specifies: the person or group of people subject to isolation or quarantine; the premises affected; the date and time the quarantine commences; the suspected cause of the outbreak or disease, if known; the basis justifying the isolation or quarantine; and the availability of a hearing to contest the directive. Accordingly, unless the U.S. Department of Labor adopts a more expansive interpretation of this term, the new paid sick leave will not be mandated by the Order.
We will continue to keep you updated on any further guidance regarding this Order, or other developments of significance to employers in the COVID-19 pandemic. To sign up for our e-communications, please email firstname.lastname@example.org.