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Is Your Business An "Essential" Business?

Posted by Aric S. Bomsztyk | Apr 02, 2020 | 0 Comments

On March 23, 2020, as COVID-19 cases continued to climb, Washington State Governor Jay Inslee issued Proclamation No. 20-25, entitled Stay Home – Stay Healthy.  (“Stay Home Order”).  By now, most everyone is aware of the Stay Home Order, but many are still wondering what exactly is allowed and what is not.  The purpose of this post is to provide some essential guidance on what the Stay Home Order requires in regards to "essential business services."   

In a nutshell, the Stay Home Order prohibits “all non-essential businesses in Washington State from conducting business,” within certain limitations.  (Stay Home Order, at 2).  The order also prohibits all people in Washington from leaving their home or place of residence for employment purposes unless such employment is for “providing essential business services.”  (Stay Home Order at 3).  

Employment in “essential business services” means either (1) “an essential employee performing work  for an essential business as identified in the ‘Essential Critical Infrastructure Workers' list,” or (2) “carrying out minimum basic operations . . . for a non-essential business.”  (Stay Home Order at 3.)   The Essential Critical Infrastructure Workers' list is available here.

Even if a business is “essential” under state guidelines, such essential business may only continue operating if the business “establish[es] and implement[s] social distancing and sanitation measures established by the United States Department of Labor's Guidance on Preparing Workplaces for COVID-19, available at https://www.osha.gov/Publications/OSHA3990.pdf, and the Washington State Department of Health Workplace and Employer Resources & Recommendations, available at https://www.doh.wa.gov/Coronavirus/workplace.”  (Stay Home Order at 4).

The Essential Critical Infrastructure Workers List, linked above, is divided into thirteen sectors:  (1) Healthcare / Public Health; (2) Emergency Services Sector; (3) Food and Agriculture; (4) Energy; (5) Water and Wastewater; (6) Transportation and Logistics; (7) Communications and Information Technology; (8) Other Community-Based Government Operations and Essential Functions; (9) Critical Manufacturing; (10) Hazardous Materials; (11) Financial Services; (12) Chemical; and (13) Defense Industrial Base. 

Although the drafters of the list clearly made efforts to identify a large number of essential workers, it is equally clear that the list is not intended to be exhaustive or exclusive.  For example, with respect to certain types of food and beverage retail businesses, the list identifies as essential “[w]orkers supporting groceries, pharmacies, and other retail that sells food and beverage products, including but not limited to Grocery stores, Corner stores and convenience stores, including liquor stores that sell food, Farmers' markets, Food banks, Farm and produce stands, Supermarkets, Similar food retail establishments, [and] Big box stores that sell groceries and essentials.” (Essential Workers’ List at 4)  

Similarly, with respect to certain types of Communications workers, the list identifies as essential  “[w]orkers who support radio, television, newspapers and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering and reporting, and workers involved in the printing and distribution of newspapers.”  (Essential Workers’ List at 9)

Similar, still, with respect to certain types of agricultural workers, the list identifies as essential “[w]orkers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products.”  (Essential Workers’ List at 4)  

The List abounds with such language—a strong indication that the Governor intended the List to be helpful in determining who is essential, but not conclusive as to that question.  In other words, a worker may still qualify as “essential” even if the worker does not expressly appear on the list.

At the same time, one should exercise caution and not simply assume that they qualify for essential worker status.  Disobeying the Governor's Stay Home can carry serious criminal penalties. In fact, disobeying the order is a gross misdemeanor, punishable by up to 364 days in jail and a $5,000 fine.  (See Stay Home Order, at 5; RCW 43.06.220(5); RCW 9.92.020).

Given the hefty penalties for violating the Governor's Stay Home Order, you should not just roll the dice—either for yourself or your business.  Instead, if you have questions about whether you qualify for Essential Worker status, or how to petition for essential worker status, make sure that you consult qualified legal counsel.  The attorneys of Tomlinson Bomsztyk Russ stand ready to assist you with either task.  In this time of uncertainty, make sure that you have a good lawyer in your corner.  Call Tomlinson Bomsztyk Russ today.  

About the Author

Aric S. Bomsztyk

Partner - Mr. Bomsztyks practice encompasses all aspects of small business representation including incorporation, financing, contract/lease review, negotiations, dispute resolution, and litigation. Mr. Bomsztyk represents a wide variety of business including internet startups, general con...

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