Connecticut Governor Ned Lamont issued two executive orders on Friday, March 20, and Sunday, March 22, that require businesses and not-for-profit entities to use telecommuting and work-from-home arrangements “to the maximum extent possible.” The orders allow entities providing essential goods and services, as well as retailers offering delivery and takeout, to continue in-person operations. All other businesses and not-for-profit entities must restrict their in-person workforces to “the minimum . . . necessary to provide security, maintenance, and receipt of mail and packages” or other essential functions no later than 8:00 p.m. on Monday, March 23, 2020.
Connecticut law gives the governor sweeping power to declare public health and civil preparedness emergencies that, among other things, allow him to “modify or suspend” any state law “whenever the Governor finds such [law] . . . in conflict with the efficient and expeditious execution of civil preparedness functions or the protection of the public health.” C.G.S.A. § 28-9. Such orders must specify the period of the modification or suspension, which cannot exceed six months. See id. Lamont has used this authority aggressively. Since first declaring a public health and civil preparedness emergency on March 10, 2020, he has issued at least 10 executive orders.
After announcing broader workplace restrictions on Friday, March 20, Connecticut scaled back its approach over the weekend. Lamont’s first order, Executive Order No. 7H,1 announced sweeping new restrictions that would have required all nonessential businesses and nonprofits to “reduce their in-person workforces . . . by 100%” and directed the Department of Community of Economic Development (DECD) to issue guidance consistent with his directive. Prior to the release of DECD guidance, however, the governor issued a second order, Executive Order No. 7J,2 on Sunday, March 22, clarifying that nonessential entities may use on-site employees or third parties for certain critical functions and that nonessential retailers may be staffed on-site, provided that they may only offer delivery or curbside pickup.3
Executive Order No. 7H features a provision expressly preempting conflicting prior orders issued by Connecticut municipalities and local officials—explicitly allowing the enforcement of previous orders that do not conflict—and prohibiting local officials from enacting or enforcing any future orders that conflict with state orders, like Executive Order No. 7J or other directives from executive agencies relating to the emergency. It also forbids municipalities from issuing “shelter-in-place” orders or otherwise restricting travel without written permission from the state.
Pursuant to Lamont’s order, the DECD issued guidance addressing which businesses and nonprofits are “essential.”4 Like the governor’s orders, the guidance takes a hybrid approach to defining what is essential: exempting industries in some cases while focusing on employee functions for others.
A. Essential Businesses, Nonprofits and Services
Executive Order No. 7H directs the DECD to issue guidance about what businesses are essential, and directs that the guidance shall include but need not be limited to the 16 critical infrastructure sectors identified by the U.S. Department of Homeland Security (DHS) (discussed further below), as well as several other categories, including (1) essential healthcare operations; (2) essential infrastructure; (3) manufacturing; (4) defense industrial base; (5) essential retail; (6) essential services; (7) news media; (8) legal and accounting services; (9) banks, insurance companies, check cashing services and other financial institutions; and (10) logistics and technology support.
As directed, the DECD defined the term “essential business” for purposes of Executive Order 7H. It first incorporates, by reference, “essential workers” in the DHS’s 16 Critical Infrastructure sectors, which include, for example, the Commercial Facilities Sector; Communications Sector; Critical Manufacturing Sector; Defense Industrial Base Sector; Energy Sector; Financial Services Sector; Healthcare and Public Health Sector; and Information Technology Sector.5 The DECD guidance thereafter exempts as essential a series of types of employers and services. Under the category of healthcare, for example, the guidance exempts biotechnology therapies; consumer health products and services; research laboratories; and pharmaceutical research, manufacturing and distribution. Specific exempted services include accounting and payroll services, legal and accounting services, financial advisors, and “financial institutions, including banks, credit unions, and check cashing services.” Even if they fit one of these exemptions, businesses are nonetheless directed to use telecommuting or work-from-home arrangements to the maximum extent possible.
Following the model of other states like New York, Connecticut provides a mechanism to allow businesses not deemed exempt pursuant to the guidance to request designation as an essential business. An application form can be found on DECD’s website.6 The governor has directed DECD to grant a request “should it determine that it is in the best interest of the state to have the workforce continue at full capacity to properly respond to this emergency.”
B. Nonessential Businesses and Nonprofits
As noted above, Connecticut’s executive orders and guidance allow nonessential businesses and not-for-profit entities to continue operating so long as they follow the state’s restrictions regarding on-site work. Executive Order No. 7J also provides that nonessential retailers may be staffed onsite, provided that they offer only remote ordering—by, for example, phone, internet, mail or drop box—and curbside pickup or delivery. Nonessential businesses and nonprofits can also allow a minimal number of staff or third parties onsite to perform critical duties like security, maintenance, and receipt of mail and packages.
C. Effect on Municipal and Local Orders
Several local governments within Connecticut, including New Haven and North Branford, have also declared states of emergency that authorize them to seek funding and take independent action to address COVID-19.
Executive Order No. 7H makes clear that such local actions are preempted to the extent they conflict with the governor’s orders or any other order issued by a state executive agency. This presumably means that local government action to alter or expand the state’s workplace restrictions will be invalid. However, a savings clause within Executive Order No. 7H allows municipalities to issue or enforce orders that do not conflict, leaving the door open for local governments to create a possible patchwork of rules.