​As the Coronavirus (COVID-19) pandemic continues, states are issuing executive orders that restrict most businesses from operating and require individuals to “shelter in place” (SIP) by staying home to avert the virus’s spread. To date, states that have issued SIP orders include California, Pennsylvania, New York, Illinois, Ohio, and Louisiana, with other states likely to follow. Prior to states implementing SIP orders, some localities issued orders; these local orders are now superseded by state orders. The U.S. Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) has identified 16 SIP exceptions applicable to “critical infrastructure sectors” which can be found here.

For food, agribusiness, and beverage companies, it is critical to determine if your organization is included in the exempt critical infrastructure sectors.

Sectors categorized as critical infrastructure sectors are divided into several categories:

• Supply
• Processing, Packaging, and Production
• Agricultural and Food Product Storage
• Agricultural and Food Product Transportation
• Agricultural and Food Processing Product Distribution
• Agricultural and Food Supporting Facilities
• Regulatory, Oversight, and Industry Organizations

Companies should consult the Food and Agriculture Sector Plan and the Federal Government’s COVID-19 site to determine whether they are exempt from their respective states’ executive orders. If your company is not a critical infrastructure company, your state’s order applies to operations within the state under the order and a violation of the applicable state statute is, at a minimum, a misdemeanor, with consequences ranging from monetary penalties and/or jail time.

Below, we outline current state SIP orders and identify specific provisions applicable to agriculture, food, and beverage stakeholders.

California

On March 19, 2020, California Governor Gavin Newsom issued Executive Order N-33-20, California’s SIP mandate. The SIP order references CISA’s critical infrastructure sectors and makes clear that “[t]he supply chain must continue, and Californians must have access to such necessities as food.” Accordingly, anyone working in the CISA’s critical infrastructure sectors in California “may continue their work,” according to the Order.

Pennsylvania

Also on March 19, 2020, Pennsylvania Governor Tom Wolf issued an Executive Order requiring the closure of all business that are “not life sustaining.” A list of “life sustaining” businesses is appended to the order and includes, among others, businesses involved with crop and animal production, fishing, hunting, and trapping, food manufacturing, merchant wholesalers (including grocery stores and farm product raw material merchant wholesalers), and food services and drinking places, including full-service restaurants and limited-service eating places (but excluding bars).
While restaurants and bars were previously ordered to close dine-in facilities, the Order specifies that “businesses that offer carry-out, delivery, and drive-through food and beverage service may continue, so long as social distancing and other mitigation measures are employed to protect workers and patrons.
Businesses operating in these areas should plan to remain open.

New York

On March 19, 2020, New York Governor Andrew Cuomo issued Executive Order No. 202.7, closing a variety of personal care services establishments (such as tattoo parlors, nail and hair salons, and barbershops) and reducing the in-person workforce at any work locations by 75 percent for “all businesses and not-for-profit entities.” This does not apply to “essential businesses,” which is defined in an earlier Executive Order No. 202.6, issued on March 18, 2020, as, in relevant part, “essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies . . . [and] vendors that provide essential services or products, including logistics and technology support.

Governor Cuomo signed Executive Order 202.8 on March 20, 2020, mandating that 100 percent of the workforce must stay home beginning Sunday, March 22, 2020 at 8:00 p.m. ET, excluding essential services such as “shipping, media, warehousing, grocery and food production, pharmacies, healthcare providers, utilities, banks and related financial institutions.” Accordingly, businesses operating in these areas should plan to remain open.

Illinois

On March 20, 2020, Illinois Governor J.B. Pritzker issued COVID-19 Executive Order No. 8, which went into effect on March 21, 2020 and will remain in effect until at least April 7, 2020. The Order requires Illinois residents to remain at home, although grocery stores, farmers’ markets, farm and produce stands, and pharmacies will remain open. Businesses involved with food production, distribution, and sale will also remain open, as will entities involved in 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. This includes licensed medical and adult use cannabis facilities, as well.

Ohio

On March 22, 2020, Ohio Governor Mike DeWine announced a similar “Stay-at-Home” order, issued by the Director of the Ohio Department of Health. The order goes into effect on March 23, 2020, at 11:59 p.m. ET. The order requires residents to stay at their place of residence, although residents may leave to obtain food from grocery stores. Food and beverage manufacturers, producers, processers, and cultivators, including farming, livestock, fishing, baking, and other agriculture producers (including cultivators, marketers, distributors of animals and goods for consumption) are expected to continue operating. The order also allows for licensed medical marijuana dispensaries and licensed medical marijuana cultivation centers to remain open.

Louisiana

On March 22, 2020, Louisiana Governor John Bel Edwards issued Executive Proclamation 33 JBE 2020, directing all residents to stay at home and limit movements outside of their homes beyond essential needs until April 13, 2020. Residents may leave their homes in order to obtain food from a grocery, convenience, or warehouse store. Food production, distribution, and sales activities will continue under the order. Businesses that sell, manufacture, or supply food and beverages, food additives, ingredients, and components to essential businesses may continue to operate. Manufacturing companies, distributors, and supply chain companies producing and supplying within the agriculture and food and beverage industries are also expected to continue operating.