New Hampshire Emergency Order #17 (Closure of Non-Essential Businesses) and Independent Schools

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Linda S. Johnson
Director, Litigation Department and Vice Chair of Education Law Group
March 27, 2020

During the week ending on March 27th, Governor Sununu issued several additional  Emergency Orders (now a total of 19 such orders) requiring all businesses and organizations providing “non-essential” services to close their physical workplaces until May 4, 2020.

Pursuant to paragraph five of the most recent Emergency Stay at Home Order (Emergency Order 17), the order does not apply to K-12 schools, however, as most schools know, Emergency Order No. 1 required all public schools to close until April 6 (which has now been extended until May 4, 2020).  Independent schools are observing this same standard of care and have closed their physical campuses to students, except in instances where they are continuing to house international students who are unable to return home due to travel restrictions and otherwise continue essential operations.

Emergency Order 17 directs all businesses and other organizations that do not provide “Essential Services” (as specified in that Order) to close their physical workplaces and facilities to workers, customers, and the public, and to cease all in person operations at 11:59 p.m. on March 27, 2020.  All such businesses are not permitted to re-open or to resume operations before 12:01 a.m. on May 4, 2020.  All businesses or other organizations providing Essential Services are required to  develop strategies, procedures, and practices to allow for social distancing protocols consistent with guidance provided by the CDC and the Division of Public Health.  These include, among other requirements, (1) prohibiting all gatherings with more than 10 individuals,  (2) keeping all personnel six feet apart, (3) encouraging employees to stay home when sick, and (4) sending home those who report feeling ill or display symptoms of COVID-19.

Emergency Order 17 still includes the provisions applicable to K-12 schools set out below, and which specifically permit individuals performing certain functions or employees to be on campus:

  • Company cafeterias – in-plant cafeterias used to feed employees; food service workers in residential schools with students who are unable to leave campus;
  • Security staff to maintain building access control and physical security measures;
  • Educators and staff supporting public and private emergency childcare programs, residential schools for students with disabilities, K-12 schools, colleges, and universities for purposes of facilitating distance learning, provision of school meals, or performing other essential student support functions, if operating under rules for social distancing.

Schools may wish to review the list of essential businesses to the extent they use third party providers for certain services necessary to run the school such as transportation or medical professionals.

Emergency Order 17 lists the reasons that people may leave their homes.  The Order also provides that the Division of Public Health and State and local police shall have the power to enforce the order.  Schools may wish to provide their employees who are working at the school with a letter that they can carry with them describing who they work for and that Emergency Order 17 does not apply to K-12 schools.  We recommend that, at a minimum, schools educate their employees about the terms of the Emergency Order and that it does not apply to K-12 schools so that they know how to respond if they are questioned by any police authority.

A helpful set of guidelines for schools from the New Hampshire Department of Health and Human Services is available here, last updated on March 26th.  This FAQ from the New Hampshire Division of Public Health Services is also a helpful resource.

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