Uchenna Ekuma-Nkama

Georgia COVID-19 Update

Introduction

As of April 2nd 2020 the State of Georgia has 5,444 confirmed cases of COVID-19 and has suffered 176 deaths. Yesterday, Governor Kemp issued a state-wide stay at home order via Executive Order to Ensure a Safe and Healthy Georgia. This most recent executive order rescinds and replaces the executive order issued on March 23rd and suspends any local ordinances passed since March 1st that were adopted with the stated purpose or effect of responding to the COVID-19 crisis. In short, this is operative law in the entire state. Highlights of the executive order include:

  1. State-wide stay at home order for all residents
  2. Restrictions on all visitors to those under stay at home orders
  3. Limiting all travel outside of the home unless fulfilling essential services as defined in the order
  4. Constraining business to minimum basic operations as defined in the order, but for Minimum Basic Business Operations and “critical infrastructure” as defined by the US Department of Homeland Security
  5. Prohibits dine-in service at restaurants and social clubs but permits takeout, curbside, pick-up and delivery services

The Georgia Department of Economic Development has been authorized to issue guidance to any business, corporation, organization or trade group regarding its status as critical infrastructure.

In regard to enforcement, the Georgia National Guard and Department of Public Safety are tasked with providing the resources as requested to assist with the enforcement of the Order. Moreover, the Department of Public Health, the Department of Public Safety, or any other state department or state officer deputized by the Governor or Georgia Emergency Management and Homeland Security are authorized to mandate the closure of any business, establishment, corporation, non-profit corporation or organization that does not comply with the Order for a period not to extend beyond the term of the Order.

Any person who violates the Order will be guilty of a misdemeanor.

Notably, the Order, which goes into effect on Friday April 3, only extends until April 13th. That is, in part, due to the fact that the state of emergency, declared on March 14th, is only in place for a maximum of 30 days per OC.G.A. 38-3-51 9 (a). That being said, the resolution passed by the Georgia General Assembly did not place a time limit on further concurrence should the Governor extend the State of Emergency. However, it did assert their right to terminate the state of emergency at any time. As such, there is a good argument that the General Assembly has given the governor the power to renew after 30 days without the necessity of it reconvening to ratify the renewal. 

Executive Order to Ensure a Safe and Healthy Georgia

Per the April 2nd Executive Order All residents and visitors of the State of Georgia shall practice social distancing and sanitation in accordance with this Order and guidelines published by the Centers for Disease Control and Prevention

  1. No business, establishment, corporation, non-profit corporation, organization, or county or municipal government is permitted to allow more than ten (10) persons to be gathered at a single location if such gathering requires persons to stand or to be seated within six (6) feet of any other person. This does not apply to cohabitating persons outside of their homes, family units or roommates residing together in private homes, or entities defined as “Critical Infrastructure”
  2. All residents and visitors of the State of Georgia are required to shelter in place within their homes or places of residence, meaning remaining in their place of residence and taking every possible precaution to limit social interaction to prevent the spread or infection of COVID-19 to themselves or any other person, unless they are:
    • Conducting and participating in Essential Services
    •  Performing Necessary Travel
    • Are engaged in the performance of, or travel to and from, the performance of Minimum Basic Operations for a business, establishment, corporation, or organization not classified as Critical infrastructure; or
    • Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from their respective employment
  3.  Essential Services permitted pursuant to the provisions of this Order are limited to the following:
    • Obtaining necessary supplies and services for family or household members, such as food and supplies for household consumption and use, medical supplies or medication, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence. Preference should be given to online ordering, home delivery, and curbside pick-up services wherever possible as opposed to in-store shopping.
    • Engaging in activities essential for the health and safety of family or household members, such as seeking medical, behavioral health, or emergency services.
    • Engaging in outdoor exercise activities so long as a minimum distance of six (6) feet is maintained during such activities between all persons who are not occupants of the same household or residence.
  4. Necessary Travel permitted under this Order is limited to such travel as is required to conduct or participate in Essential Services, Minimum Basic Operations, or Critical Infrastructure as defined by this Order.
  5. Minimum Basic Operations are limited to:
    • The minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization, provide services, manage inventory, ensure security, process payroll and employee benefits, or for related functions. Such minimum necessary activities include remaining open to the public subject to the restrictions of this Order.
    • The minimum necessary activities to facilitate employees or volunteers being able to work remotely from their residences or members or patrons being able to participate remotely from their residences.
    • Instances where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services.
  6. All businesses, establishments, corporations, non-profit corporations, or organizations that are not Critical Infrastructure shall only engage in Minimum Basic Operations as defined in this Order during the effective dates of this Order. Such entities shall also implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures shall include the following:
    • Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
    • Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
    • Enhancing sanitation of the workplace as appropriate;
    • Requiring hand washing or sanitation by workers at appropriate places within the business location;
    • Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
    • Prohibiting gatherings of workers during working hours;
    • Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
    • Implementing teleworking for all possible workers;
    • Implementing staggered shifts for all possible workers;
    • Holding all meetings and conferences virtually, wherever possible;
    • Delivering intangible services remotely wherever possible;
    • Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
    • Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
    • Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
    • Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;
    • Enforcing social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
    • For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia law;
    • Increasing physical space between workers and customers;
    • Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
    • Increasing physical space between workers’ worksites to at least six (6) feet.
  7. The term “Critical Infrastructure” shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the US Department of Homeland Security as “essential critical infrastructure workforce,” in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance. Critical Infrastructure that continues in-person operation during the effective dates of this Order shall implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures may include, but shall not be limited to:
    • Screening and evaluating workers who exhibit signs of illness,  such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
    • Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
    • Enhancing sanitation of the workplace as appropriate;
    • Requiring hand washing or sanitation by workers at appropriate places within the business location;
    • Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
    • Prohibiting gatherings of workers during working hours;
    • Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
    • Implementing teleworking for all possible workers;
    • Implementing staggered shifts for all possible workers;
    • Holding all meetings and conferences virtually, wherever possible;
    • Delivering intangible services remotely wherever possible;
    • Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
    • Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
    • Prohibiting handshaking and other unnecessary person-to-person contact in the workplace; and
    • Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
    • Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.
  8. The Georgia Department of Economic Development is authorized to issue guidance to any business, corporation, organization, or industry trade group regarding its status as Critical Infrastructure. This guidance shall not require a finding of fact but shall be in writing and shall be considered a final agency action for the purpose of proceedings under Code Section 50-13-19.
  9. All restaurants and private social clubs shall cease providing dine-in services. Takeout, curbside pick-up, and delivery are permitted in accordance with the provisions of this Order. This provision shall not limit the operation of dine-in services in hospitals, healthcare facilities, nursing homes, or other long-term care facilities; however, to the extent possible, such facilities should offer in-room dining.
  10. All gyms, fitness centers, bowling alleys, theaters, live performance venues, operators of amusement rides as defined by Code Section 25-15-51, body art studios permitted pursuant to Code Section 31-4o-2, businesses registered pursuant to Code Sections 43¬10-11 and 43-10-18, estheticians as defined by Code Section 43-10¬1(8), hair designers as defined by Code Section 43-10-1(9), persons licensed to practice massage therapy pursuant to Code Section 43¬24A-8, and businesses which possess a license to operate as or otherwise meet the definition of “bar” as defined by Code Section 3¬1-2(2.1), shall cease in-person operations and shall close to the public while this Order is in effect.
  11. Persons required to shelter in place under any provision of this Order shall not receive visitors, except as follows:
    • Visitors providing medical, behavioral health, or emergency services or medical supplies or medication, including home hospice;
    • Visitors providing support for the person to conduct activities of daily living or instrumental activities of daily living;
    • Visitors providing necessary supplies and services, such as food and supplies for household consumption and use, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence; or
    • Visitors received during end-of-life circumstances.
  12. To the extent practicable under the circumstances, visitors shall maintain a minimum distance of six (6) feet between themselves and all other occupants of the person’s home or residence. Any visitors visiting for the sole purpose of delivering medication, supplies, or other tangible goods shall, to the extent practicable, deliver such items in a manner that does not require in-person contact or require the deliverer to enter the person’s home or residence.
  13. The provisions of this Order related to visitors listed in the immediately preceding paragraph shall be strictly enforced against nursing homes or other long-term care facilities, including inpatient hospice, assisted living communities, personal care homes, intermediate care homes, community living arrangements, and community integration homes.
  14. The Department of Public Health, the Department of Public Safety, or any other state department or state officer deputized by the Governor or the Georgia Emergency Management and Homeland Security Agency are, after providing reasonable notice, authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance with this Order for a period not to extend beyond the term of this Order.
  15. Pursuant to Code Section 38-3-51, the powers of counties and cities conveyed in Titles 36 and 38, including those specific powers enumerated in Code Sections 36-5-22.1 and 36-35-3 are hereby suspended to the extent of suspending enforcement of any local ordinance or order adopted or issued since March 1, 2020, with the stated purpose or effect of responding to a public health state of emergency, ordering residents to shelter-in-place, ordering a quarantine, or combatting the spread of coronavirus or COVID-19 that in any way conflicts, varies, or differs from the terms of this Order. Enforcement of all such ordinances and orders is hereby suspended and no county or municipality shall adopt any similar ordinance or order while this Order is in effect, except for such ordinances or orders as are designed to enforce compliance with this Order

Critical Infrastructure

The Executive Order exempts “Critical Infrastructure” from the shut-down order and stay at home provisions. “Critical Infrastructure” refers to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the US Department of Homeland Security as “essential critical infrastructure workforce,” in guidance dated March 19, 2020, and revised on March 28, 2020. It also includes those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The order makes it clear that the operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance.

The US Department of Homeland Security Guidance that is referenced in the executive order exempts businesses in the following industries:

  • Health Care/Public Health
  • Law Enforcement, Public Safety, and Other First Responders
  • Food and Agriculture
  • Energy (including electricity, petroleum, natural gas, natural gas liquids, propane and other liquid fuels)
  • Water and Wastewater
  • Transportation and Logistics
  • Public Works and Infrastructure Support Services
  • Communications and Information Technology
  • Other Community or Government Based Operations and Essential Functions
  • Hazardous Materials
  • Financial Services
  • Chemical
  • Defense Industrial Base
  • Commercial Facilities
  • Residential/Shelter Facilities and Services
  • Hygiene Products and Services

Select Industry Profiles

Residential: The Department of Homeland Security exempts residential construction workers in relation to activities to ensure additional housing units that can be made available to combat the nation’s existing housing supply shortage.

Commercial Facilities: Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions are exempt. Additionally, workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions and workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors – with reduced staff to ensure continued operations are exempt. Finally, those distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment are exempt.

Critical Manufacturing: Any manufacturing facility that produces materials necessary to sustain other “critical infrastructure” is exempt. This includes manufacturing facilities that produce materials for medical supply chains, industrial minerals and metals, critical chemicals, food and agriculture etc.

Transportation: The exemptions provided to the transportation industry are focused on maintaining logistical networks to sustain the critical industries. Additionally, mass public transit service workers are permitted to continue work as they provide a portion of the population with needed mobility.

Financial: Any workers need to provide, process and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement; wholesale funding; insurance services; consumer and commercial lending; and capital markets activities.

Emergency Order Powers

As previously mentioned, the action taken by Governor Kemp in relation to COVID-19 today is pursuant to the State of Emergency Order issued on March 14th which was ratified by the General Assembly, two days later, on March 16th

Under O.C.G.A. §38-3-51, the Governor can declare a State of Emergency due to a health crisis but must also call the General Assembly into a special session “for the purpose of concurring with or terminating the public health emergency.”  The state of emergency remains in effect for 30 days unless expressly extended by the Governor.

Among the powers enumerated by O.C.G.A. §38-3-51, the state of emergency gives the governor considerable power to deal with our present health care crisis. For more information on the powers given to the Governor and Department of Health via the State of Emergency order see our March 14th Soapbox blog post, “Georgia Governor Brian Kemp Declares State of Emergency to Deal with Coronavirus Pandemic and Calls a Special Session of the General Assembly”.

DPH Administrative Orders

Pursuant to the Georgia Code and expanded powers granted under the Emergency declaration, the Department of Public Health issued two Administrative Orders, one on March 23rd and one on March 27th. Further regulatory announcements will likely come due to the latest stay at home executive order.

The March 23rd order addressed isolation and quarantine policies and procedures. Now that the Governor has put in place a state-wide stay at home order that applies to everyone, these administrative regulations are no long applicable.

Similarly, much of the March 27th administrative order is no longer relevant aside from administrative regulations on the staff of any Nursing, Long-Term Care Facilities and Early Child Education Programs, Non-profit food services and any other businesses licensed and monitored by DHS. Said regulations were reaffirmed and in some cases strengthened in the executive order.

Conclusion

The state-wide stay at home Order ends what was a local government driven process that resulted in a myriad of restrictions throughout the state. However, the Executive Order will certainly be followed up by regulations from the Department of Public Health and the publication of a process by which the Department of Economic Development will determine critical versus non-critical business in relation to the US Department of Homeland Security Guidance. As previously mentioned the Executive Order extends through April 13.

If you have any questions please contact the Dentons Public Policy Team.