Two categories of Essential Services have been added to Exhibit A of the Stay at Home order in New Hampshire.
On March 26, 2020, Governor Sununu issued Emergency Order #17, “Closure of non-essential businesses and requiring Granite Staters to stay at home.” The Order requires the closure of physical workplaces and facilities of New Hampshire non-essential businesses. Businesses providing “Essential Services” may continue to operate, subject to conditions. Exhibit A to the Order lists the industry sectors that provide essential services and support to both the COVID-19 mission and the State. Exhibit A provides that it will continue to be reviewed and changed throughout the COVID-19 pandemic. The Governor has updated Exhibit A to include two additional categories of essential services – real estate transactions/agents/brokers and other retail – curbside pick-up or delivery.
The Order and others issued by the Governor can be found at the following link: https://www.governor.nh.gov/news-media/emergency-orders/index.htm
The Order is effective at 11:59 p.m. on March 27, 2020. It requires the closure of the physical workplaces and other facilities of all businesses and organizations not providing Essential Services until May 4, 2020. The Order provides that businesses performing Essential Services must develop strategies, procedures, and practices relating to social distancing protocols consistent with CDC and the Division of Public Health guidance. The Order requires all New Hampshire citizens to stay at home, with certain exceptions, including leaving home to work in a business or organization that provides Essential Services. It also allows New Hampshire residents to leave home for employment related purposes in connection with remote work done for a business that does not provide Essential Services.
Each business or organization should check to determine whether the services they provide are listed in the Exhibit to the Order. However, even those businesses and organizations providing Essential Services are encouraged to operate in a manner that does not require employees, customers or the public to report a physical facility.
Please note that the Order does not apply to any K-12 schools in New Hampshire, government bodies or houses of worship, provided those religious organization comply with Emergency Order #16, “Temporary prohibition on scheduled gatherings of 10 or more attendees.” This article provides guidance only to New Hampshire businesses and other organizations subject to the Order and seeking to determine whether they provide Essential Services.
How the Order defines “Essential Services”
The Order provides a comprehensive list of those services considered to be essential, including the following sectors of the New Hampshire economy:
- Law Enforcement, Public Safety, First responders
- Food and Agriculture
- Health Care, Public Health and Human Services
- Energy, which includes the electricity industry, petroleum workers, natural and propane gas workers, and steam workers
- Waste and Wastewater
- Transportation and Logistics
- Public Works
- Communications and Information Technology
- Other community-based essential functions
- Hazardous Materials
- Financial Services
- Defense Industrial Complex
- Real Estate Transactions / Agents / Brokers
- Other Retail – Curbside Pick-up or Delivery
The Order provides more detailed information on the individuals and businesses covered by each of these sectors. It is important to note that retailers not otherwise deemed essential in any sector are permitted, under “Other Retail – Curbside Pick-up or Delivery,” to transition to pick-up or delivery only for orders taken online, by phone, or other remote means. Retailers are permitted to have staff on site, as necessary to support taking orders and curbside pick-up or delivery. However, retailers must observe the protocols discussed below and ensure that their facilities are cleaned regularly. The retailer’s facilities must remain closed to the public.
Social Distancing Protocols for Providers of Essential Services and Retailers Not Deemed Essential that Provide Curbside Pick-Up or Delivery
The Order requires businesses or other organizations providing Essential Services and retailers who transition to curbside pick-up or delivery for orders taken online or over the phone to develop “strategies, procedures and practices” that are consistent with CDC and the New Hampshire Department of Public Health’s guidance relating to COVID-19. We recommend that providers of Essential Services adopt written policies and procedures identifying the Essential Services that they provide and adopting health and safety and social distancing measures for their employees both within and outside the workplace, while working for their employer. Employees should be made aware of the policies and procedures and be required to follow them.
CDC guidance is available at the following site:
The New Hampshire Department of Public Health’s guidance can be found at the following site:
My business provides Essential Services. What can I do to help my employees once the orders come into effect?
The Order allows employees to travel to workplaces providing Essential Services, and it allows employees to travel in connection with their remote work for businesses providing non-essential services. Exhibit A to the Order states that this includes crossing state borders for work related travel, traveling to and from work, and transporting products to facilities. Governor Sununu’s March 26th press conference explained that the Order does not require residents to “shelter-in-place.” Transportation services will not shut down, and New Hampshire borders will not close.
For employers who want to ensure that their employees do not encounter difficulties on their way to and from work, we recommend that providers of Essential Services encourage their employees to commute with evidence of employment such as paystubs, business cards, or copies of work schedules in the event they are stopped and questioned. Employers providing Essential Services should consider providing employees with a letter printed on company letterhead confirming their employment and including a copy of the business’s written policies and procedures identifying the Essential Services that the business provides.
I believe that my business provides Essential Services, but it does not appear on the list. What now?
If you believe that your business provides Essential Services but it has not been designated as an essential business, you may make a request for an essential business designation by providing your contact information and a brief justification to the following address: [email protected]. The Order states that such designations will only be made for businesses if they have not been covered by the guidance in the Governor’s guidance.
McLane Middleton will continue to monitor changes to the New Hampshire Essential Services list and the supporting criteria as it becomes available. Our Corporate Department is available to provide counsel to providers of both non-essential services and Essential Services in New Hampshire.