Stay-at-Home Orders: Q&A for Businesses with Transportation Operations

COVID-19 Update

Date: March 24, 2020

To reduce the spread of COVID-19, many states have issued stay-at-home orders prohibiting most in-person operations of non-essential businesses and requiring non-essential workers to shelter at home.[1] Businesses with transportation operations must consider these orders as they contemplate how they will continue to function in this challenging and dynamic environment. We answer some key questions about operating under stay-at-home orders.

Are my transportation operations and workers essential?

So far, state stay-at-home orders have generally deemed transportation and logistics businesses and their workers as essential. Essential transportation and logistics businesses include air, rail, truck and water transportation providers; transportation network providers such as Uber and Lyft; ports and marine terminal operators; warehouses; and transportation intermediaries such as air freight forwarders, ocean freight forwarders, non-vessel-operating common carriers, trucking brokers and trucking freight forwarders. This is consistent with federal guidance that broadly deems transportation and logistics workers as essential workers and identifies transportation and logistics as a critical infrastructure sector that should continue to operate.[2]

The orders do not consistently or clearly address transportation operations that are arms of businesses that are otherwise non-essential. For example, Michigan’s order states that businesses may conduct operations that require their workers to leave home to the extent those workers are critical infrastructure workers, including transportation and logistics workers. In contrast, Pennsylvania’s order states that only essential businesses may remain open without referencing workers for otherwise non-essential businesses who may be involved in transportation functions. If your business has a transportation operation but is otherwise non-essential, consider contacting your state to determine whether the transportation operation is essential.

Do I need to designate which of my transportation and logistics workers are essential?

It depends on the state. Michigan, for example, requires employers to designate the transportation workers they deem essential. Ohio’s order does not. Even if a state does not require them, making such designations would provide clarity to workers and help avoid confusion should a compliance question arise.

How will government officials know that my employees are essential workers?

We recommend that you provide your essential employees with a letter designating them as essential and identifying their functions. The employees should keep this letter with them while traveling to and from work and while traveling as part of their work.

Do I have to enact social distancing measures even if my business is essential?

Yes, orders generally require essential businesses to use social distancing and other mitigation measures to the extent possible. For example, Indiana and Ohio require essential business to take proactive steps to ensure social distancing, including, where possible, designating 6 feet of separation for employees, making hand sanitizer and sanitizing products readily available, having separate operating hours for vulnerable populations, and posting remote access measures and facility operation information online. Pennsylvania requires essential businesses to follow the social distancing practices and other mitigation measures defined by the Centers for Disease Control.

FOR MORE INFORMATION

For more information on how stay-at-home orders impact your transportation business or operations, please contact:

Karyn A. Booth
202.263.4108
Karyn.Booth@ThompsonHine.com

Jason D. Tutrone
202.263.4143
Jason.Tutrone@ThompsonHine.com

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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[1] States that currently have issued stay-at-home orders include California, Connecticut, Delaware, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Nevada, New York, Ohio, Pennsylvania and West Virginia.

[2] Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, Christopher C. Krebs, Director, Cybersecurity & Infrastructure Security Agency (March 19, 2020).