To our clients, friends, and business colleagues:
As you have likely heard, Governor Sununu issued a Stay-at-Home Order, a copy of which you can find here, which becomes effective at 11:59 pm tonight. The Order requires all NH residents to stay at home except for certain designated activities and non-essential businesses to close until May 4th. Many of you have questions about what the Order means and what constitutes an “essential” business and we are writing to provide you with a recap.
What is an Essential Business?
Businesses deemed essential will continue to be able to cross state borders for travel – to and from work/home, transporting products to distribution facilities, etc. In the attached Order you will find a detailed and extensive list of businesses that are deemed essential, including the following categories of businesses:
- Law Enforcement, Public Safety, First Responders
- Food and Agriculture – grocery and convenience stores, takeout & delivery from restaurants
- Health Care/Public Health/Human Services – doctor’s offices, hospitals, and pharmacies
- Energy and Electricity Industry
- Petroleum Workers
- Natural and Propane Gas Workers
- Steam Workers
- Waste and Wastewater
- Transportation and Logistics
- Public Works
- Communications and Information Technology
- Other Community-Based Essential Functions (e.g. school lunch program deliveries, gas stations, weather forecasters, election personnel, educators, professional services, laundromats, workers at places of worship)
- Hazardous Materials
- Financial Services
- Defense Industrial Base
If the function of your business is not listed above or in the descriptive list here, but you believe it is essential or providing essential services, you can request a designation as an essential business and should include basic contact information and justification. Send the request to: email@example.com.
The Order is clear that even if a business is considered essential, it must continue to follow social distancing protocols, including but not limited to (1) prohibiting all gatherings with more than 10 individuals; (2) keeping all personnel six feet apart; and (3) encouraging employees to stay home when sick, and sending home those who report feeling ill or display symptoms. The Order also encourages essential businesses to continue their operations through remote means to the extent possible.
What is a Non-Essential Business?
Non-essential businesses are any not listed above (or described more fully in the Order) and/or considered social activities such as: non-essential retail stores and malls, barbershops, hair salons, cosmetic stores, and tattoo parlors, movie theaters, bowling alleys, arcades, concerts, sporting events, festivals, and all state beaches along the Seacoast.
What if My Business is Considered Non-Essential?
If you have a non-essential business without the capability for your workers to work remotely, then your business will have to close its physical operations at least until May 4th and you will be faced with laying off your employees, effective Friday, March 27th. If you are laying off more than 25 employees, you should write to the NHDOL advising them that the company has laid more than 25 employees, but did not provide WARN notification where the cause of the layoff was due to the COVID-19 pandemic and the Governor’s Order #17. This letter will be placed on file in the event that an issue comes up regarding WARN compliance. Final wages for laid off employees must be paid within 72 hours of the termination date or by Monday, March 30th. Wages could also include accrued unused vacation, sick or paid time off (PTO) if it is part of your company’s practice or policy to pay those benefits out at termination of employment. If laid off employees are eligible for commissions or non-discretionary bonuses, those could also be due depending on the terms of those policies. There are a host of other considerations, including Federal WARN Act, unemployment compensation, and the like that require consideration.
What if My Business is Considered Essential or My Business in Non-Essential, but Some Employees Can Work Remotely?
If you have an essential business or non-essential business with employees who can work from home, you will be required to comply with the new federal law, the Families First Coronavirus Response Act (FFCRA) from April 1st, which is very broad terms provides some amount of paid leave to employees who take sick leave or expanded FMLA leave for certain enumerated reasons from April 1st – December 31st. The FFCRA applies to businesses with fewer than 500 employees. The attached poster must be posted along with other employment-related posters as of April 1st and contains the basics of the law. The FFCRA provides exceptions to compliance for businesses with fewer than 50 employees where compliance would place the business in jeopardy. This determination would be made by the US Department of Labor (USDOL). There is also an exception for healthcare providers.
If your business is facing financial hardship, but you still have the ability for limited operations, you could consider reduction in hours, reduction in pay, layoffs, and/or any combination thereof. However, please be mindful of NHDOL laws that require employers to provide written notification of any changes to the terms and conditions of employment to employees and acknowledged by employees.
We are here to help
These employment issues and laws are evolving on a daily basis and we want to provide with you the support that you need to enable you to get through this and in a position to get back to business as soon as the crisis passes.
Please contact us with any questions.