Closing the Capitol: Mayor Bowser Issues Stay-at-Home Order

Under Order 2020-054, “essential activities” include:

• Obtaining medical care that cannot be provided through telehealth;
• Obtaining food and essential household goods;
• Performing essential government functions;
• Working at essential businesses;
• Caring for a family member or pet in another household;
• Serving as a caregiver providing essential services to another;
• Engaging in essential travel; or
• Engaging in allowable recreational activities (outdoor activities that comply with social distancing requirements and are performed only with household members).

When leaving the home, the order requires strict compliance with “social distancing requirements,” defined as:

• Maintaining at least six (6)-foot social distancing from other individuals;
• Washing hands with soap and water for at least twenty (20) seconds or using hand sanitizer frequently, or after contact with potentially infected surfaces, to the greatest extent feasible;
• Covering coughs or sneezes, preferably with a tissue immediately disposed of, or into the sleeve or elbow, not hands;
• Regularly cleaning high-touch surfaces; and
• Not shaking hands.

Any individual who is suspected or confirmed to have COVID-19 or any other transmissible infectious disease (including a cold or the flu) is prohibited from being outside their home except to seek or receive medical care.

Essential Businesses and Minimum Business Operations
Notably, individuals can still leave home to engage in “essential business activities” or the “minimum business operations” of nonessential businesses. Further, individuals can obtain and provide home-based services, as long as the services do not involve physical touching and comply with social distancing requirements.

The provisions of Mayor Bowser’s previous order 2020-053, defining which businesses are “essential,” remain in effect. “Essential businesses” include:

• Health care and public health operations

-  Including mental health providers and all health services provided to animals

• Essential infrastructure
• Food and household products and services

-  Including establishments engaged in the sale, supply, or distribution of food products, alcohol, and household products and laundry service providers

-  While included, restaurants and facilities (like schools and senior centers) that serve food may only offer take-out and delivery: sit-down consumption and self-service of food is prohibited

• Social services providing the necessities of life
• Communications and information technology
• Energy and automotive
• Financial services
• Educational institutions

-  Solely for the purpose of facilitating distance learning and operations or using such facilities to support DC’s efforts to address the COVID-19 emergency

• Transportation and logistics

-  Included are taxis and ridesharing companies

Construction and building trades

• Housing and living facilities
• Professional services
• Childcare facilities

-  Facilities are encouraged to prioritize services for children of essential employees and must comply with Guidance from the Office of the State Superintendent of Education (OSSE)

All “essential government functions,” including all tasks performed by persons designated as essential or emergency personnel, will also continue operation.

Essential businesses are strongly encouraged to stay open while still complying with defined social distancing requirements. Essential businesses that remain open to the public with an expected occupancy of over 10 people must also post a copy of the social distancing requirements found on coronavirus.dc.gov.

All nonessential businesses are required to cease on-site activities except for “minimum basic operations,” defined as:

• The minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, and related functions;
• The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences; and
• The minimum necessary activities to facilitate teleworking or the remote delivery of services formerly provided in-person by the business; to provide cleaning and disinfection of a business’s facilities; or to provide employee supervision of contractors or employees providing essential maintenance of the facility.

Nonessential businesses may continue off-site operations remotely and in compliance with defined social distancing requirements.

Department of Consumer and Regulatory Affairs Oversight of Essential and Nonessential Businesses
Building on the previous order, Order 2020-54 authorizes the Department of Consumer and Regulatory Affairs (DCRA) to request an essential business’s plans for minimizing person-to-person contact and achieving social distancing to the greatest extent feasible. Upon request, an essential business is required to provide such plans.

Similarly, a nonessential business conducting minimum business operations, or that has a waiver from the Homeland Security and Emergency Management Agency (HSEMA), may also be asked for its operational plan and why the conducted activities and manner of conducting them fit within requirements.

The DCRA’s authority extends to imposing penalties for non-compliance, including:

• Summary closure of businesses, subject to subsequent hearings at the Office of Administrative Hearings;
• Notices of Infractions and Orders to Show Cause why a Business Should not be Closed;
• Notices of Infractions and Penalties of up to $1,000 per day for violations per site operating in violation of Order 2020-053 or 2020-054; and
• Penalties of up to $5,000 per day per site for operation after an Order to close or visit by an inspector that resulted in a warning or request to close, that was immediately complied with.

These penalties are in addition to the Alcohol Beverage Control Administration’s authority to revoke liquor licenses or permission for delivery services.

Requirements and Restrictions on Essential Travel
Order 2020-054 defines “essential travel” as:

• Travel related to the provision of, or access to, essential activities, essential governmental functions, essential businesses, or minimum basic operations, including travel to and from work to operate essential businesses or maintain essential governmental functions;
• Travel to care for elderly, minors, dependents, persons with disabilities, or other vulnerable persons;
• Travel required to visit a house of worship;
• Travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services;
• Travel to return to a place of residence from outside Washington, DC;
• Travel required by law enforcement or court order;
• Travel required for non-residents to return to their place of residence outside Washington, DC; and
• Travel within the Washington region to engage in allowable activities under that jurisdiction's laws.

The order also includes requirements and restrictions for using public transportation, drivers of ride-sharing vehicles, personal mobility devices (e.g., scooters and bicycles), and public and private transit officials.

Large Gatherings
The Mayor’s previous prohibition on “large gatherings” remains in place. “Large gatherings” are gatherings of 10 or more people at the same time in a single confined or enclosed space. Outdoor spaces are included if they are (1) enclosed by a fence, physical barrier, or other structure; and (2) people are within six feet of one another for an extended period.

Essential businesses, groups performing essential government functions, gatherings on property owned by the federal government, and spaces where 10 or more people may be in transit or waiting for transit are exempt from the prohibition.

Enforcement, and Waiver
Knowing violations are subject to all civil, criminal, and administrative penalties authorized by law. This includes sanctions or penalties for violating DC Official Code §7-2307, including $1,000 fines, summary suspension, or revocation of business licensure. Willful violations may be guilty of a misdemeanor and subject to a fine up to $5,000, imprisonment for up to 90 days, or both.

Pillsbury’s experienced crisis management professionals are closely monitoring the global threat of COVID-19, drawing on the firm’s capabilities in supply chain management, insurance law, cybersecurity, employment law, corporate law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.