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What Legally Qualifies as an Essential Business?

American One Hundred Dollar Bill with surgical mask. Protection from Coronavirus on economy. High resolution image for all crop sizes. White background.
By Richard Dahl on April 13, 2020 1:11 PM

In large part, the dividing line between essential and nonessential businesses in the time of coronavirus depends on where you live.

In the absence of a national order that would define essential businesses, state and local governments are left to develop their own plans.

While many businesses are considered essential everywhere — think health care services, grocery stores, and gas stations — others are OK in one location but not in another. Take gun stores and marijuana dispensaries, for instance.

Or look at Arizona, which considers golf courses an essential business. Seriously.

And while we're at it, it's certainly worth pointing out that liquor stores are considered essential everywhere.

The Legal Basis for 'Essential' vs. 'Nonessential'

Although state and local governments are deciding which businesses qualify as essential, the federal Department of Homeland Security has provided extensive guidance, identifying 16 business sectors as essential. Some states, like California, have adopted the DHS list in its entirety. Others have modified versions.

Here are the 16 essential business sectors:

  • Health care/public health
  • Law enforcement, public safety, and other first responders.
  • Food and agriculture
  • Energy
  • Water and wastewater
  • Transportation and logistics
  • Public works and infrastructure support services
  • Communications and information technology
  • Critical manufacturing
  • Hazardous materials
  • Financial services
  • Chemical
  • Defense industrial base
  • Commercial facilities
  • Residential/shelter facilities and services
  • Hygiene products and services

Each section has more detailed descriptions of the kind of work that is considered essential. For instance, within the commercial facilities category, DHS suggests that it include workers who support the supply chain of building materials; who support essential operational support functions in e-commerce; who work in hardware and building materials stores; and who distribute, install, and service boilers, furnaces, heating/cooling system, and the like.

Summing up "essential workers," DHS says they are those "who support crucial supply chains and enable functions for critical infrastructure. The industries they support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, water and wastewater, law enforcement, and public works."

The DHS advisory, issued March 28, described the basis for determining essential businesses as those that are essential to "continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions, among others."

Legal Gray Areas for Essential/Nonessential Business

Of course there are gray areas on whether a business and its workers can be considered essential or not. (Golf courses? Really?)

In New York, for instance, bicycle shops were initially deemed nonessential. But the designation set off an uproar among bicyclists who argued that biking was an essential alternative to shoulder-to-shoulder public transit. The state relented, and bike shops in New York are now open.

Also, some home-improvement stores considered essential are finding that they can sell some items, but not others, and therefore must close off sections of their stores. In North Carolina, for instance, commercial clothing has been labeled nonessential, and so big-box stores like Walmart are having to cordon off their sizeable clothing sections.

And garden centers can sell plants and landscaping materials, but gift sections must be closed.

Stores that are allowed to stay open are still encouraged to maintain social distancing rules for customers. In Ohio, Gov. Mike DeWine made it more formal in issuing his order by requiring businesses to use signs or tape to keep customers separated as well as to post information on how customers should use hand sanitizer.

It can be confusing. But one thing is for sure: We've never appreciated the workers who provide our needs more than we do now.

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