On Sunday, March 22, Delaware Governor John Carney issued modifications four and five to the Declaration of a State of Emergency for Delaware (Declaration). The Fourth Modification clarifies what businesses are deemed essential and non-essential. The Fifth Modification requires all individuals within the State to shelter-in-place in their residences and bans all travel except for “Essential Travel” and travel for “Essential Activities,” defined below).

The original Declaration was issued due to the public health threat of COVID-19, and become effective on March 13, 2020.

• The First and Second Modifications to the Declaration followed the U.S. Center for Disease Control’s (CDC) guidance for large events and mass gatherings; specifically modifying, then halting public gatherings to 50 or more people for the next eight weeks. The Second Modification also placed certain restrictions on the operations of specific businesses and facilities within the State for the next eight weeks.
• The Third Modification, issued on March 21 at 12:00 p.m., closed all State beaches, except “to persons using the beaches for exercise or to walk their dogs,” and subject “to certain precautions recommended by the CDC.”

Governor Carney additional Modifications Four and Five are summarized below.

Modification Four

The Fourth Modification to the Declaration, issued March 22 at 4:00 p.m., designates “certain [State] businesses, establishments, and enterprises . . . as ‘Essential Businesses’ and ‘Non-Essential Businesses.’” The Modification states, in part, that Delaware Division of Small Business will have the discretion to make additions, amendments, clarifications, exceptions, and exclusions to the list of “Essential Businesses” and “Non-Essential Businesses,” and instructs the Division to also consider guidance from the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency on the Essential Critical Structure Workforce during the COVID-19 response in the Division’s designation of “Essential” and “Non-Essential Businesses.”

“Non-Essential Businesses”

All “Non-Essential Businesses” within the State shall be closed, effective March 24, 2020 at 8:00 a.m., until after May 15, 2020 or “the public health threat of COVID-19 has been eliminated.” However, “Non-Essential Businesses” may continue to offer goods and services over the internet. The Fourth Modification defines “Non-Essential Businesses” as follows:

• Hospitality and Recreation Facilities, including but not limited to:
  – indoor community and recreation centers
  – casinos and racetracks
  – sporting facilities (professional and amateur), including but not limited to indoor skating rinks (ice and non-ice), martial arts studios, dance studios, indoor tennis and similar indoor athletic facilities
  – gyms, including yoga, barre and spin facilities
  – hair salons, barber shops, nail salons, and spas.
• Concert halls and venues
• Theaters and performing arts venues
• Sporting event facilities and venues
• Golf courses and shooting ranges, except golf courses and shooting ranges are excluded from Non-Essential Businesses if they conform with the social distancing requirements of the prior modified declarations of the COVID-19 State of Emergency
• Realtors of both residential and non-residential properties and associated industries, except that Realtors are permitted to work from home to the extent feasible, to do all necessary showings to perspective buyers/lessors, and to take any action necessary to complete any sales or rentals in progress prior to this Modification of the State of Emergency
• Certain business support services, including customer service call centers and telemarketing operations
• Shopping malls, except a shopping mall may be excluded from Non-Essential Businesses if public access is required so that the public can access any Necessary Retail and Services Establishments located within or adjacent to the shopping mall. In such cases, any public access is subject to the social distancing requirements of the prior modified declarations of the COVID-19 State of Emergency
• Retail stores not included within the definition of Essential Businesses

“Essential Businesses”

The Fourth Modification defines “Essential Businesses” as businesses, from the categories below, that “employ or utilize” specific types of employees. Although the Fourth Modification’s list of “Essential Businesses” doesn’t directly reference federal government guidelines recently issued by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, with respect to critical infrastructure industries, it appears to be safe to conclude that the businesses that fall within the following categories are permitted to continue operating if telework is not feasible.

If a business falls under one of the following categories, consult the appropriate section of Modification Four for a detailed description of the types of employees that define an “Essential Business.”

• Healthcare/Public Health
• Law Enforcement, Public Safety, First Responders
• Food and Agriculture
• Energy
  – Electricity Industry
  – Petroleum Industry
  – Natural Gas and Propane Industries
• Water and Wastewater
• Transportation and Logistics
• Public Works
• Communications and Information Technology
• Other Community-Based Government Operations and Essential Functions
• Manufacturing
• Hazardous Materials
• Financial Services and Insurance
• Chemical
• Defense Industrial Base
• Construction
• Necessary Products Retailers
• Necessary Retail and Services Establishments
• Open Air Recreation Facilities

All State “Essential Businesses” must follow the COVID-19 guidelines for public safety recommended by the CDC and Department of Public Health, to include:

• Excluding employees who (a) have been diagnosed with COVID-19, (b) are reasonably suspected to have COVID-19, or (c) have symptoms of acute respiratory illness, such as fever, cough, or shortness of breath, shall stay home and not come to work until they are until they are free of fever (100.4 °F [38.0 °C] or greater using an oral thermometer), signs of a fever, and any other symptoms of acute respiratory illness for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines; and
• Excluding employees who reside or intimately interact with persons who (a) have been diagnosed with COVID-19, (b) are reasonably suspected to have COVID-19, or (c) have symptoms of acute respiratory illness, such as fever, cough, or shortness of breath.

Modification Five

Issued shortly after Modification Four on March 22, Modification Five to the Declaration mandates that, effective March 24 at 8:00 a.m., all individuals currently living within the State “are ordered to shelter-in-place, at their home or place or residence[.]” Further, all travel (except for “Essential Travel” and travel for “Essential Activities,” defined below) is prohibited. Additionally, all individuals using “shared or outdoor space” must “maintain social distancing of at least six feet from any other person[.]”

Individuals may, however, leave their home or residence for “Essential Travel,” “Essential “Activities,” or to perform “Minimum Basic Operations,” defined as:

“Essential Travel” includes travel for any of the following purposes:

• Any travel related to the provision of or access to Essential Activities or Minimum Basic Operations;
• Travel to care for elderly persons, minors, dependents, persons with disabilities, other vulnerable persons, pets, or livestock;
• Travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and for receiving any other related services;
• Travel to return to a place of residence in Delaware from outside the jurisdiction;
• Travel required or authorized by a law enforcement officer or court order; or
• Travel required for non-residents to return to their place of residence outside the State.

“Essential Activities” are defined as:

• To engage in activities or perform tasks essential to their health and safety, or to the health and safety of their family or household members (including, but not limited to, pets), such as, by way of example only and without limitation, obtaining medical supplies or medication, visiting a health care professional, or obtaining supplies they need to work from home;
• To obtain necessary services or supplies for themselves and their family or household members, or to deliver those services or supplies to others, such as, food supplies, dry goods, pet supplies and any other household consumer products, and products necessary to maintain the safety, sanitation, and essential operation of residences;
• To engage in outdoor activity, providing the individuals comply with Social Distancing Requirements, as defined below, such as, by way of example and without limitation, walking, running, biking, or fishing. Individuals may go to public parks and open outdoor recreation areas (except beaches, which may be used only as described in the Third Modification of the Declaration of a State of Emergency);
• To perform work permitted by the Fourth Modification of the Declaration of a State of Emergency.
• To care for a family member, friend, or pet in another household, and to transport family members, friends, pets, or livestock as allowed by this Order.

“Minimum Basic Operations” are defined as:

• The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions; and
• The minimum necessary activities to facilitate employees of the business being able to work remotely or continue to work remotely from their residences.

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