The order takes effect 12:01 a.m. on April 3, 2020.

State and local responses to the COVID-19 pandemic seem to be changing by the day. Case in point: On March 30, Florida’s governor issued a stay-at-home order of sorts, but only for four counties in South Florida. On April 1, though, Governor DeSantis issued Executive Order No. 20-91, the most sweeping, statewide edict concerning Florida’s response to COVID-19 to date.

Though comprehensive in terms of geographical scope, the extent to which the order will fully yield the benefits of a true “stay-at-home” order remains to be seen, since it does not order all Florida residents to actually stay home or “shelter in place.” Instead, Executive Order No. 20-91 mandates that “all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.” (Emphasis added.)

However, Section 1(A) of the order does direct that “[s]enior citizens and individuals with a significant underlying medical condition … shall stay at home and take all measures to limit the risk of exposure to COVID-19.” (Emphasis added.) The order explains that significant underlying medical conditions include “chronic lung disease, moderate-to-severe asthma, serious heart conditions, immunocompromised status, cancer, diabetes, severe obesity, renal failure and liver disease.”

For those not covered by that relatively narrow mandatory provision, the effect of the order hinges on what is considered an “essential service” or an “essential activity.”

Essential Services

The order provides that “essential services” include all of those services detailed on the list provided by the U.S. Department of Homeland Security (DHS) in its March 28, 2020, guidance (and subsequent lists published). The DHS list of essential services, attached to Executive Order No. 20-91, is self-described as “overly inclusive” and consists of 11 pages of services in a wide range of industries including healthcare, agriculture, energy, communications, financial services, hygiene products and many others. Also included in the order’s definition of “essential services” are the businesses and activities previously designated “essential” by Miami-Dade County, including healthcare providers; grocery stores, farmers’ markets, produce stands, etc.; gas stations and auto-supply, auto-repair and related facilities; banks and related financial institutions; professional services, such as legal or accounting firms, when necessary to assist in complying with legally mandated activities; hardware stores; landscape and pool care businesses; veterinarians and pet boarding facilities; mortuaries, funeral homes and cemeteries; and firearm and ammunition supply stores.

Essential Activities

The order provides that “essential activities”—meaning activities for which Floridians may venture outside of their homes—include:

• Attending religious services conducted in churches, synagogues and houses of worship;
• Participating in recreational activities (consistent with social distancing guidelines);
• Taking care of pets; and
• Caring for or otherwise assisting a loved one or friend.

The exception for attending religious services has been subject to criticism, given that worshippers are often in close quarters when congregating for prayer; in some cases, hundreds of worshippers have packed into churches and other houses of worship despite local orders to refrain from doing so. Just this week, a warrant was issued for a Tampa-area Pentecostal pastor who held services at the River at Tampa Bay Church (and provided bus transportation for members who needed a ride) despite local emergency orders prohibiting him from doing so, out of fear that proceeding with the services would be dangerous to the public health. Now that the state’s executive office has deemed attending religious services in houses of worship (specifically including churches) an “essential activity,” it is unclear what weight any local orders to the contrary will carry.

Employment- and Labor-Related Implications

Because the U.S. Department of Labor has now taken the position that these types of stay-at-home orders are isolation/quarantine orders that may, under certain circumstances, trigger eligibility for employee paid sick leave under the Families First Coronavirus Response Act (FFCRA), it would appear as though (1) employers who remain open must permit employees who fit into one or both of the categories of people described in Section 1 of the order (that is, senior citizens or those with significant underlying medical conditions) to stay at home; and (2) those employees would be entitled to paid sick leave under the FFCRA, provided that (a) the business remains open, there is work to be done by those employees, and, but for the stay-at-home order, the employees would be doing the work; (b) the employees are unable to work remotely (or “telework”); and (c) the employees actually stay at home and cite Executive Order No. 20-91 as their reason for doing so.

Separately, in terms of working from home, the order specifically explains that “[n]othing in this order prohibits individuals from working from home; indeed, this Order encourages individuals to work from home.”

The order takes effect 12:01 a.m. on April 3, 2020.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information

If you have any questions about this Alert, please contact Harvey W. Gurland, Jr., Patrick C. Gallagher, Ph.D., Kevin E. Vance, Justin M. L. Stern, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

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