Locke Lord QuickStudy: State Restrictions on Non-Essential Business Operations During the COVID-19 Crisis

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Within the past four months, Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, and many localities throughout the United States have prohibited all “non-essential” public and private employees from commuting or gathering for work as a result of COVID-19.

While states are maintaining varying levels of restrictions on non-essential businesses, many states and localities, including Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas,1 Vermont, Virginia, Washington, West Virginia, and Wisconsin have begun lifting the restrictions, allowing some services to restart operations.

While some states have paused their reopening process, Arizona, Colorado, Florida, Michigan, South Carolina, and Texas have reinitiated some of their business closures. 
 
For many businesses, this means that they must determine whether they operate within the ‎varying definitions of essential services. As provided below, both the federal government and all ‎noted states and localities ‎have issued guidance on what constitutes essential services in their ‎jurisdiction. Some jurisdictions have deferred entirely to the federal government’s guidelines on ‎essential critical infrastructure, while others have either provided their own lists or supplemented ‎the federal guidelines. ‎

It is important to note further that, as of the date of this publication, the federal guidelines are in no way binding on the states, and are only there to provide guidance to states and municipalities. The federal government has likely issued these guidelines, rather than a sweeping national standard, both out of deference to the “police powers” afforded to states under the Constitution, as well as an understanding that individual states are more properly suited to assess their unique needs. Nevertheless, there have been calls, including by the U.S. Chamber of Commerce, urging states and municipalities to issue uniform standards based on the instituted federal guidelines.

For some businesses, the determination of whether they are an essential service will be a straight-forward determination; for many others, it will be a matter of interpretation. Many businesses are also asking then whether there is a method by which they can be precleared as an essential or critical service. At this point, Kansas, Massachusetts, New York, and some municipalities have offered ‎businesses the ability to request a designation or opinion on whether they are an essential service; however, these are optional and are not required of all businesses. It is unlikely that any ‎state would have the capacity required to preclear all essential businesses, and therefore is an unlikely ‎measure for a state to take.

Instead, businesses must determine—based on the guidance provided at the federal level and any ‎associated restrictions at the state or local level—whether they have a reasonable belief that their ‎business is providing an exempted service to society.

For a copy of the federal memo, click here.
For more guidance on the federal memo and its interpretation, click here.
For a copy of the Alabama reopening order, click here.
For a copy of the Alaska reopening order, click here.
For a copy of the current Arizona order, click here.
For a copy of the California order, click here.
For a copy of the California reopening plan, click here.
For a copy of the current Colorado order, click here.
For a list of “essential businesses” in Colorado, click here
For a copy of the Connecticut reopening order, click here.
For a copy of the Connecticut reopening plan, click here.
For a list of “essential businesses” in Connecticut, click here.
For a copy of the Delaware reopening order, click here.
For a copy of the Delaware reopening plan, click here.
For a list of “essential businesses” in Delaware, here.
For a copy of the District of Columbia reopening order, click here.
For a copy of the District of Columbia reopening plan, click here.
For a copy of the current Florida order, click here.
For a copy of the Georgia reopening order, click here.
For a copy of the Hawaii reopening order, click here.
For a copy of the Idaho reopening order, click here.
For a copy of the Idaho reopening plan, click here.
For a copy of the Illinois reopening order, click here.
For a copy of the Illinois reopening plan, click here.
For a copy of the Indiana reopening order, click here.
For a copy of the Indiana reopening plan, click here.
For a copy of the Kansas reopening order, click here.
For a copy of the Kentucky reopening order, click here.
For a copy of the Kentucky reopening plan, click here.
For a copy of the Louisiana reopening order, click here.
For a copy of the Maine reopening order, click here and here.
For a copy of the Maryland order, click here.
For a copy of the Maryland reopening order, click here.
For a copy of the Maryland reopening plan, click here.
For a copy of the Massachusetts reopening orders, click here, here, here and here.
For a copy of the Massachusetts reopening plan, click here.
For a list of “COVID-19 Essential Services” in Massachusetts, click here.
For a copy of the current Michigan orders, click here.
For a copy of the Michigan reopening plan, click here.‎
For a copy of the Minnesota reopening order, click here.
For a copy of the Mississippi reopening order, click here.
For a copy of the Missouri reopening plan, click here.
For a copy of the Montana reopening order, click here.
For a copy of the Nevada reopening order, click here.
For a copy of the New Hampshire reopening plan, click here.
For a list of “essential businesses” in New Hampshire, click here.
For a copy of the New Jersey reopening order, click here.
For a copy of the New Jersey reopening plan, click here.
For a copy of the New Mexico reopening order, click here.‎
For a copy of the New Mexico reopening plan, click here.‎
For a copy of the New York order, click here.‎
For a copy of the New York reopening orders, click here.‎
For a copy of the New York reopening plan, click here.
For a list of “essential businesses” in New York, click here.
For a copy of the North Carolina reopening order, click here.
For a copy of the North Carolina reopening plan, click here.
For a copy of the Ohio reopening order, click here.
For a copy of the Ohio reopening plan, click here.
For a copy of the Oklahoma reopening order, click here.
For a copy of the Oregon reopening order, click here.
For a copy of the Pennsylvania reopening plan, click here.‎
For a list of “life sustaining businesses” in Pennsylvania, click here.
For a copy of the Rhode Island reopening order, click here.‎
For a copy of the Rhode Island reopening plan, click here.
For a copy of the current South Carolina order, click here.‎
For a copy of the Tennessee reopening orders, click here.
For a copy of the current Texas order, click here.
For a copy of the Vermont order, click here.
For a copy of the Vermont reopening plan, click here.‎
For a copy of the Virginia reopening order, click here.
For a copy of the Virginia reopening plan, click here.
For a copy of the Washington reopening plan, click here.
For a copy of the West Virginia reopening plan, click here.
For a copy of the Austin, TX order, click here.
For a copy of the Dallas County, TX order, click here.
For a copy of the El Paso County, TX order, click here.
For a copy of the Travis County, TX order, click here.


Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.