Can my manufacturing plant stay open in light of the Director of the Department of Health’s Stay at Home Order (“Ohio Order”)?
A Manufacturer can stay open in at least two ways. First, if it meets the definition of an Essential Business. Second, if it produces products used by “Other Essential Businesses and Operations.”
As to the definition of an Essential Business, the Ohio Order specifically identifies manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, petroleum and fuel, mining, construction, national defense, and communications, as Essential Businesses.
The larger list is for what is defined as “Other Essential Businesses and Operations.”
Other Essential Businesses and Operations include the following:
- CISA Critical Infrastructure List. On March 19, 2020, the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA), issued a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response. The Ohio Order specifically incorporates all of the businesses listed in the CISA list into the definition of “Other Essential Businesses and Operations” for the Ohio Order.
The CISA Critical Infrastructure List includes the following manufacturing businesses:
- Manufacturers and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
- Food manufacturer employees and their supplier employees—to include those employed in food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging.
- Manufacturing, packaging, and distribution of veterinary drugs
- Manufacturing and distribution of animal medical materials, animal vaccines, animal drugs, feed ingredients, feed, and bedding, etc.
- Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products.
- Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary for agricultural production and distribution.
- Drilling, production, processing, refining, and transporting propane, natural gas, and petroleum for use as end-use fuels, feedstocks for chemical manufacturing.
- Manufacturers and distributors (to include service centers and related operations) of packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging, and distribution operations.
- Manufacturers and distributors of communications equipment.
- Manufacturers and supply chain vendors that provide hardware and software, and information technology equipment (to include microelectronics and semiconductors) for critical infrastructure.
- Workers necessary for the manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base.
- Workers at chemical manufacturing plants and workers who manufacture packaging items for chemicals.
- Workers who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products, including glass container manufacturing.
- Manufacturing/production workers who support the essential services required to meet national security commitments to the federal government and U.S. Military.
The Ohio Order also contains several additional “Other Essential Businesses and Operations” beyond what is covered in the Federal CISA Critical Infrastructure List. Those businesses include:
- Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poult1y, prepared food, alcoholic and non- alcoholic beverages, any other household consumer products (such as cleaning and personal care products), and specifically includes their supply chain and administrative supply operations. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-grocery products, and products necessary to maintain the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
- Food, beverage, and licensed marijuana production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
- Organizations that provide charitable and social services. Businesses and religious and secular nonprofit organizations, including food banks, when providing food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with · disabilities;
- Religious entities. Religious facilities, entities and groups and religious gatherings, including weddings and funerals.
- Media. Newspapers, television, radio, and other media services;
- First Amendment protected speech.
- Gas stations and businesses needed for transportation. Gas stations and auto supply, auto- repair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities;
- Financial and insurance institutions. Bank, currency exchanges, consumer lenders, including but not limited, to pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, payday lenders, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products. Also insurance companies, underwriters, agents, brokers, and related insurance claims and agency services;
- Hardware and supply stores. Hardware stores and businesses that sell electrical, plumbing, and heating material;
- Critical trades. Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintain the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations;
- Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods, vehicles or services to end-users or through commercial channels;
- Educational institutions. Educational institutions-including public and private pre-K-12 schools, colleges, and universities-for purposes of facilitating distance learning, performing critical research, or performing essential functions.
- Laundry services. Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
- Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Schools and other entities that typically provide food services to students or members of the public may continue to do so on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only;
- Supplies to work from home. Businesses that sell, manufacture, or supply products needed for people to work from home;
- Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to operate, including computers, audio and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security;
- Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, marinas, docks, boat storage, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in the Ohio Order;
- Home-based care and services. Home-based care for adults, seniors, children, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness, including caregivers such as nannies who may travel to the child’s home to provide care, and other in-home services including meal delivery;
- Residential facilities and shelters. Residential facilities and shelters for adults, seniors, children, pets, and/or people with developmental disabilities, intellectual disabilities, substance use disorders, and/or mental illness;
- Professional services. Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services);
- Critical labor union functions. Labor Union essential activities including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in Essential Businesses and Operations – provided that these checks should be done by telephone or remotely where possible.
- Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or carry-out food services.
- Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related services.
If your company primarily manufactures products used to support any of the above-listed businesses, you should still be able to operate. If you review this list and are still not sure whether your business has essential status, please contact a CCJ attorney for assistance.