The Latest on NH Emergency Orders

Patrick C. Closson
Director, Chair of Corporate Department and Chair of Healthcare Group
Mike Tule Headshot
Michael B. Tule
Director and Vice Chair, Corporate Department
Published: McLane.com
March 24, 2020
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On March 23, 2020, New Hampshire Governor Chris Sununu issued five orders seeking to provide solutions to New Hampshire residents facing challenges caused by the COVID-190 outbreak. The Governor’s orders are available on his website:

https://www.governor.nh.gov/news-media/emergency-orders/

What Guidance is available to New Hampshire Businesses? Ongoing Analysis is Required.

Among the orders issued yesterday, Governor Sununu did not include a “stay at home” or “shelter in place” order. Should Governor Sununu issue a “stay at home” or “shelter in place” order, we will provide you with our analysis of the order and guidance on how to comply. In the meantime, New Hampshire businesses and employees can review federal guidance and the Massachusetts order, and access the McLane Middleton COVID-19 Resource Center for information.

https://www.mclane.com/Coronavirus-Resource-Center

Summary of orders issued by Governor Sununu on March 23, 2020

Online Notarization of Legal Documents

Emergency Order #11 provides authority to notarial officers to perform secure, online notarization of legal documents. The order creates an exception to the requirement that the signatory personally appear before the notarial officer. A notarial officer can now witness an act through video conference or other electronic means, where the signatory is at a physical location different from the notarial officer. Further, the order provides several new options to the notarial officer to confirm the signatory’s identity other than through personal knowledge and confirmation with government issued identification. The order allows for confirmation of the signatory’s identity by review of two sources of public or private data whereby a third party confirms identity and it allows for a witness, who is either physically present or able to communicate with the notarial officer, to confirm identity by electronic means. Finally, the order requires that the notarial officer create and retain an audio and visual recording of the performance of the notarization.

https://www.governor.nh.gov/news-media/emergency-orders/ – see Emergency Order #11

Access to Public Meetings

Emergency Order #12 provides temporary modification of public access to meetings under the New Hampshire Revised Statutes Annotated (RSA) Section 91-A. The order allows state and local government bodies to conduct meeting through electronic means, while preserving the public’s right to receive notice and observe state and local government meetings that are being held remotely. Quorum requirements are waived. Public access to meetings can be by telephone, video or other electronic means. The order provides for adjournment of the meeting if the public is unable to access the meeting electronically.

New Hampshire Statute RSA 91-A is available on the General Court of New Hampshire website: http://www.gencourt.state.nh.us/rsa/html/vi/91-a/91-a-mrg.htm

Pharmacies Permitted to Compound Hand Sanitizer and Provide Remote Services

Emergency Order #13 temporarily allows New Hampshire pharmacists and pharmacies to compound and sell hand sanitizer over the counter under certain conditions. Hand sanitizer must conform to the requirements of the temporary Federal Food and Drug Administration Policy, March 2020, it must be properly labeled, and pharmacies can sell it only to consumers at a fair price and in quantities to avoid hoarding. The product cannot be sold to other retailers for resale. The order also allows all pharmacy technicians to perform non-dispensing tasks remotely and under remote, as opposed to onsite, supervision from a licensed pharmacist.

Out-of-State Mail-Order Pharmacies

Emergency Order #14 temporarily authorizes licensed, out-of-state pharmacies to ship drugs involved in clinical trials to residents of New Hampshire if the drugs cannot be obtained in-person due to COVID-19. Any medical services provided in New Hampshire must either by in-person or appropriate for telehealth services, as provided in Emergency Order #8 issued by the Governor on March 18, 2020. In summary, Emergency Order #8 requires New Hampshire regulated health insurance carriers to allow all in-network providers to “deliver clinically appropriate, medically necessary covered services to members via telehealth.”

Telehealth and Remote Instruction of New Hampshire Children

Emergency Order #15 allows out-of-state licensed medical providers to provide services to New Hampshire residents through telehealth (as provided in Emergency Order #8, described above). It also allows them to perform services to further temporary remote instruction of New Hampshire school children in furtherance of a child’s Individual Education Program (“IEP”) administered by the child’s school. The order allows both in-state and out-of-state medical providers to perform health care services through all forms of telehealth, including video and audio, audio-only, and other electronic media, to New Hampshire children enrolled in a New Hampshire school or a school in another state in furtherance of an IEP.

New Hampshire Residents Impacted by the Massachusetts Essential Business Order

Many New Hampshire residents own businesses and work in Massachusetts. They are, therefore, impacted by the Massachusetts order. Our analysis of the Massachusetts order is available through the McLane Middleton COVID-19 Resource Center.

We recommend that New Hampshire residents working for Massachusetts businesses providing essential services to travel to work with paystubs, business cards, copies of work schedules or other evidence of employment in the event they are stopped and questioned. New Hampshire based employers and employees can start gathering such documentation to prepare themselves in the event that Governor Sununu decides to put a similar order in place.

Consider the Federal Guidance relating to critical infrastructure sectors and the essential workers

The U.S. Department of Homeland Security has provided guidance to support State, Local, and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on during the COVID-19 pandemic.  Throughout the US, states and counties have started to require “non-essential” businesses to close and order residents to stay at home as much as possible, other than to perform tasks related to health and safety. Exemptions exist allowing employees to report to work for “essential businesses” or to provide “essential services.”  Based on these orders, consider whether your business or your employer is considered an essential business or a provider of essential services. Whether a business qualifies as an essential business is determined on a state by state, and in some cases, a county-by-county basis. A link to U.S. Department of Homeland Security guidance is included below:

https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19

According to the Department of Homeland Security, essential businesses may include health care operations, infrastructure and utilities, certain manufacturing, certain retail operations, certain financial operations, defense contractors, and services to maintain safety.  The exact definition may vary by state and county.  If a state or county issues a “stay at home” or “shelter in place” order, businesses and employees should review the order and the definition of “essential” and “non-essential” businesses closely to determine if their business can continue to operate and if their employees can continue to come to work, as opposed to working remotely. Employees should contact their employers to obtain direction on whether or not to report to work.  Failure to follow an order regarding operating a non-essential business could lead to civil fines.

The attorneys in the McLane Middleton Corporate Department are available to provide immediate and effective counsel both during and after the COVID-19 outbreak. Should you wish to discuss resources available to your business, please do not hesitate to contact a member of our Corporate Department.