Connecticut Department of Economic and Community Development Issues Guidance For Determining Which Businesses Are "Essential" under Connecticut's COVID-19 "Work from Home" Executive Order

On Sunday, March 22, as required by Governor Lamont's Executive Order 7H (Executive Order) dated March 20, which Executive Order was supplemented by Executive Order 7J dated March 22, the Connecticut Department of Economic and Community Development (DECD) issued guidance entitled "Business Exemptions for Coronavirus - Executive Order 7H" concerning which businesses and nonprofit entities are deemed "Essential Businesses" for purposes of the Executive Order. Under the Executive Order, non-essential business or not-for-profit entities are required to reduce their in-person workforces at any workplace locations by 100 percent no later than March 23 at 8:00 p.m.

Businesses and not-for-profits falling within categories designated as Essential Businesses in the DECD guidance are not subject to the in-person restrictions set forth in the Executive Order. Since the restrictions in the Executive Order applies to places of business, non-essential businesses may continue activities that are conducted off-site (e.g. a customer's home) and/or by telecommuting or working from home. The Executive Order directs businesses to employ, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize.

Pursuant to Governor Lamont's Executive Order 7J and the DECD guidance: (i) non-essential retailers may be staffed on-site, provided that they may only offer remote ordering (e.g. phone, internet, mail, dropbox) and curb-side pick-up or delivery (ii) non-essential businesses and nonprofits to allow staff or third parties on site to the minimum extent necessary to provide security, maintenance and receipt of mail and packages. This includes but is not limited to auto, boat, bicycle, recreational vehicle, and all other vehicle sales, if conducted remotely.

For purposes of the Executive Order, the DECD guidance provides that "Essential Business" means:

Essential workers in the 16 Critical Infrastructure Sectors, as defined by the Federal Department of Homeland Security, unless otherwise addressed in a prior or future executive order pertaining to the existing declared public health and civil preparedness emergency. On March 19, 2020, the Cybersecurity and Infrastructure Security Agency (CISA) developed a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, which identifies workers who conduct a range of operations and services that are essential to continued critical infrastructure viability.

Healthcare and related operations including:

Infrastructure including:

All manufacturing and corresponding supply chains, including aerospace, agriculture, and related support businesses.

Retail including:

Food and agriculture, including:

Services including:

Providers of basic necessities to economically disadvantaged populations including:

Construction including:

Services necessary to maintain the safety, sanitation and essential operations of all residences and other buildings (including services necessary to secure and maintain non?essential workplaces):

Vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including:

Defense and national security-related business and operations supporting the U.S. Government or a contractor to the US government.

The DECD guidance provides further that any business that only has a single occupant/employee (e.g. attendant) is deemed exempt from the Executive Order and is not required to submit a request to be designated as an essential business.

If the function of your business is not listed above, but provides essential services or functions, you may request designation as an essential business by the DECD. Day Pitney LLP is prepared to assist in this process. Businesses requesting designation as an Essential Business need to (1) describe why it is requesting that the business be deemed an Essential Business for purposes of Executive Order 7H and (2) provide details of how the business plans to meet CDC recommended guidelines to maintain employee safety during the COVID-19 pandemic. We anticipate that most successful requests will be carefully drafted and narrowly tailored to be limited only to designation for the functions of your business that perform or support an essential business function described in the DECD guidance. All decisions will be communicated by DECD via email and will "balance public health, safety, and the security of our industry supply chains supporting life sustaining businesses."

To request designation as an essential business, a business will be required to complete an application in the form of "Business Information Request for Designation as an Essential Business." Applications will be submitted by businesses, electronically, under penalty of false statement, Connecticut General Statutes section 53a-157b, and the authorized applicant will certify that the information submitted is true and correct to the best of the applicant's knowledge. Applications may be subject to public disclosure under the Connecticut Freedom of Information Act.