On March 20, 2020, Governor Pritzker issued Executive Order 2020-10 (Covid-19 Executive Order No. 8, the “Executive Order”), a wide-ranging directive seeking to stem the spread of the COVID-19 outbreak throughout the State of Illinois. The Executive Order took effect at 5:00 pm on Saturday, March 21, 2020, and will continue through at least April 7, 2020.
The Executive Order requires large portions of Illinois residents to remain in their homes unless they are engaging in activities the Order designates as necessary. Appendix A to this Alert is a brief summary of what activities are permitted under the Executive Order.
Although the Executive Order provides detailed direction regarding which activities are permitted and which are prohibited/highly discouraged, a directive this broad has inevitably raised questions and will force difficult decisions for local governments.
This Alert is structured in a Frequently Asked Questions format to focus on issues that have either already been raised by local governments, or that local governments will likely encounter as they navigate business and government operations under the Executive Order.
1. Local Authority Questions
Q: What responsibility and authority do local governments have to enforce the Executive Order?
A: Gov. Pritzker has made it clear that the State will rely on residents and businesses to self- regulate, and that he does not expect or anticipate aggressive, direct enforcement of the Executive Order by government at any level. Each local government will have to determine how proactive it will be in the enforcement of the Executive Order. We note that in the Governor’s Office Daily COVID-19 Q&A issued March 21, 2020, the Governor stated that “Illinois State Police is cooperating with local law enforcement and business licensing authorities to enforce [the Executive Order].”
In the event that local enforcement is necessary or desired, we have compiled and set forth below a list of the applicable legal authority, resources, and tools that exist at the State level, and that are available to local governments.
Responding State Agencies
The two State agencies that will be most active in effectuating the Executive Order are the Illinois State Police (ISP) and the Illinois Department of Public Health (IDPH). Local governments have been advised to contact these agencies in the event that they encounter non-compliance or need assistance to secure compliance. That said, Gov. Pritzker plainly stated that these agencies have neither the time nor the resources to actively patrol Illinois communities for non-compliance.
Gov. Pritzker also clarified that he has not ordered a statewide mobilization of the National Guard at this time. As of Friday March 20th, only 60 members of the Illinois National Guard have been mobilized for the purposes of assisting with medical needs and logistics.
Emergency Management Act (“EMA”) (20 ILCS 3305)
Local government enforcement authority under the EMA arises from direction from the Governor or designated State agencies. Although the Executive Order cites to the EMA, local governments need more detailed guidance from the State agencies to fully understand the nature and scope of their authority pursuant to the State Act. The Executive Order provides that State and local agencies may enforce the Executive Order pursuant to Sections 7, 18, and 19 of the EMA, but each of these Sections refer back to State direction that local agencies are directed to follow. Section 7 provides that the Governor’s disaster proclamation activates local Emergency Operations Plans (EOPs), which may include municipal authority to enforce in specified situations. Section 18 requires Emergency Services Disaster Agencies (ESDAs) to “execute and enforce” the Governor’s executive orders, but is silent about how to exercise this authority and whether the local government has any additional or other enforcement authority. Section 19 mandates that political subdivisions cooperate and extend such services and facilities to the Governor, the Director of Public Health, and ESDAs as they may require.
In the absence of clear direction from the State, local governments should not rely exclusively on EMA. Local governments should additionally rely on their general police powers, applicable local code provisions, and those powers authorized pursuant to local emergency orders.
Penalty for Violation
The Executive Order does not include a specific penalty for persons or businesses that violate the Order. This contrasts to similar “Shelter in Place” orders issued in other states.1 Therefore, local governments seeking to enforce compliance with the Executive Order will have to rely on their inherent police powers as well as any additional powers implemented by local emergency orders or applicable local code provisions.
As detailed in our March 12, 2020 Client Alert, Section 11-1-6 of the Illinois Municipal Code allows the corporate authorities of any municipality to enact an ordinance granting the Mayor or Village President the “extraordinary authority and power” to exercise, by executive order, the “powers of the corporate authorities reasonably necessary to respond to an emergency.” To invoke these powers, Mayors and Village Presidents must issue a declaration of the state of emergency, which can be extended by motion of the corporate authorities. Once a declaration is in place, a Mayor or Village President can issue emergency orders for specific goals, including, without limitation: (i) the cancellation of public meetings, gatherings, and other municipal events and services; (ii) the procurement of necessary supplies and services; (iii) the closure of certain businesses; and (iv) the imposition of curfews.
1 Both the City of San Francisco “Shelter in Place” order and the Los Angeles County “Safer at Home” order classify violation of the orders as Class A Misdemeanors under a specific provision of the California Health and Safety Code. Neither the Illinois Executive Order nor the EMA include or provide for a similar penalty.
It is likely that the scope of a municipality’s emergency powers ordinance and declaration of emergency authorize the Mayor or Village President to issue a supplemental emergency order declaring that any violation of the Executive Order is a public nuisance. The maximum penalty for such an offense will depend on local ordinances but could include daily fines and even imprisonment. However, it is our opinion that a violation of the Executive Order would constitute a nuisance under standard municipal code nuisance provisions even without the issuance of such a supplemental order by the Mayor or Village President.
The guidance we have received from the State is that local government enforcement should begin with a verbal warning or encouragement for compliance. The next step would be the issuance of a citation for violating the Executive Order, under either State or local law. In the event of a more serious or repetitive violation by a local business establishment, suspension or revocation of the business license would be an available option, as described below.
Suspension/Revocation of Business License or Registration
Subject to the limitations of a municipality’s emergency powers ordinance, a Mayor or Village President can issue an emergency order declaring that operation of a business in violation of the Executive Order shall be deemed a violation of the establishment’s local business license or registration. Additionally, many local codes already require licensed and registered businesses to comply with all general requirements of law to remain in good standing, and it is our opinion that the Executive Order is now a requirement of law. Each local government will have to determine its own enforcement strategy and whether to focus its resources on businesses where people congregate or more broadly on any business that violates the Executive Order.
Q: Does the Executive Order negate or override local emergency declarations and authority?
A: No. Section 18 of the Executive Order expressly acknowledges the ongoing authority of local governments to issue their own quarantine, curfew, or isolation orders, to close specific locations for designated periods of time, and to enact provisions stricter than those in the Executive Order.
2. Use Determination Questions
Q: How do municipalities determine if a local business qualifies as an essential business or operation?
A: Unless and until the State provides specific interpretive direction, we recommend that local governments be deliberative about whether local businesses are “essential” (allowed) or “non- essential” (prohibited). Local authorities should rely on common sense regarding how to regulate businesses that are expressly excluded from the definitions of essential businesses under the Executive Order.
Although the Executive Order defines “essential businesses and operations” more broadly than similar “shelter in place” directives issued in other jurisdictions, we believe that the spirit of the Executive Order is to encourage business closures for public health reasons.
Accordingly, a narrow interpretation of which businesses are “essential” would be consistent with the State’s direction and the Governor’s intent.
As noted above, local authorities can enforce the “stay at home” directive against businesses that refuse to comply with the Executive Order. Indeed, the Governor’s Office Daily COVID- 19 Q&A issued on March 21, 2020 directs residents to “refer to local law enforcement authorities,” if they believe a non-essential business is not abiding by the Executive Order.
For example, the Executive Order specifically states that permitted “Healthcare and Public Health Operations” do not include “fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.” Local authorities may reasonably direct any of these classes of businesses to close immediately. Similarly, on-premises dining at restaurants remains prohibited. Violations like these would, at a minimum, constitute grounds for suspension or revocation of a business license or registration, depending on the wording of local codes and emergency orders.
It is likely that local businesses will seek determinations from local officials on whether a specific operation is an essential business or provides work necessary for essential infrastructure. We are available to provide our interpretation of the Executive Order in the context of these individualized requests. In this Alert, we have included our responses on several interpretation requests that we have already received from our local government clients.
Q: Can residential housing construction continue?
A: Yes. The Executive Order allows residents to leave their homes to perform work on “Essential Infrastructure,” which is defined as follows:
“Essential Infrastructure includes, but is not limited to: food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction)”
This language appears to have been copied from the orders issued in San Francisco and Los Angeles County, two areas suffering from profound housing shortages. Under the Executive Order, all housing construction in Illinois, including single family homes, is allowed to continue. In contrast, the State of Pennsylvania has chosen to halt all construction work, including large public works projects, with a narrow exception for construction on health care facilities.
Significantly, the Executive Order does not permit the continuation of construction projects other than those specifically listed. Construction of mixed-use developments involving both residential and commercial components are not specifically included in the Executive Order and will require a case-by-case analysis to determine compliance.
Q: Does a stand-alone liquor store qualify as an essential business or operation?
A: Yes. Section 1-12(a) of the Executive Order designates “[s]tores that sell groceries and medicine” as a category of “Essential Businesses and Operations.” Despite this narrow heading, the full text of subsection 1-12(a) explicitly includes “other establishments engaged in the retail sale of … alcoholic and non-alcoholic beverages.”.
Supporting our opinion is the fact that the immediately following subsection of the Order classifies “adult use cannabis dispensaries” as essential businesses. If retailers of recreational cannabis are deemed essential businesses, then so too are retailers of alcoholic liquor.
Q: Is a personal care business like a hair or nail salon an essential business or operation?
A: No. Although the Executive Order provides a broad exception for “Healthcare and Public Health Operations,” the following uses are explicitly excluded from that category: “gyms, spas, salons, barber shops, tattoo parlors, and similar facilities.” These uses do not fall under any other category of exempt businesses and therefore should not remain open for business.
Q: How does the Executive Order address religious institutions and religious activities?
A: The Executive Order identifies several “Essential Business” and “Human Services Operations” that may continue operations. Significantly, religious services and activities are not among them. The only express exemption granted to religious institutions is for provision of “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.”. Performance of religious services or functions does not fall within that exemption. Although not explicitly stated, this omission appears to be intentional as religious congregations and celebrations have been identified as vectors for infections in other states and countries (e.g. New Rochelle, N.Y. and South Korea).
Moreover, the Executive Order does not allow persons to leave their homes except for one of the designated “Essential Activities.” Thus, even if a congregation’s clergy could perform a service at their house of worship, the parishioners would be forbidden from leaving their homes to attend. And limiting service attendance to ten or fewer people would not sanction the travel to and from the house of worship.
The only exemption explicitly related to religious observance is for funerals. Funerals, burial, and cemetery services are classified as “Essential Businesses and Operations.” Accordingly, clergy and mourners may leave their homes to attend a funeral or burial service. They must comply with the Executive Order’s “Social Distancing” mandates at any such service: they must remain at least six feet apart at all times; they must wash their hands or use sanitizer frequently, and they must refrain from shaking hands. Funeral and burial business owners must take measures to designate the required spacing and must have hand sanitizer and sanitizing products readily available.
Virtual services and ministry remain permitted. Clergy and their parishioners alike may engage in religious observance through any audio, video, Internet, or other electronic means. Clergy may travel to their house of worship, but only for “Minimum Basic Operations,” which is defined to include only those “minimum necessary activities” to maintain a business’ property and inventory, to ensure security and process payroll and employee benefits, and to facilitate teleworking. The Executive Order is not clear as to whether this would allow clergy to travel to their house of worship in order to provide virtual religious services.
Q: May mutual support groups like Alcoholics Anonymous continue to conduct in-person meetings?
A: Yes. Organizations that provided social services to persons with disabilities are classified as essential businesses under the Executive Order. The Americans with Disabilities Act classifies persons who are in recovery from alcohol or narcotics addiction as disabled. Therefore, mutual support groups like AA can continue to meet in person so long as they observe Social Distancing practices. That said, the General Services Office of Alcoholics Anonymous is encouraging AA chapters to migrate towards virtual meetings and conference calls (https://www.aa.org/assets/en_US/en_updatesoncoronavirus.pdf).
3. Employment, Contracting, and Internal Operations Questions
Q: Can local governments mandate direct deposit for employee pay?
A: Unfortunately, this frequently asked question by our local government finance directors was not addressed by the Executive Order. We believe that the answer is no. The Illinois Wage Payment and Debt Collection Act, as enforced by the Illinois Department of Labor, does not allow employers to compel employees to receive payment by direct deposit. Employees may elect direct deposit, but otherwise employers must pay in a form employees may readily convert to cash (i.e. check or cash).
All that said, it is reasonable to encourage employees to use direct deposit, particularly if it is the most efficient means of delivering pay during this emergency. We suggest employers use the following or similar language:
“Employees are encouraged, but not required, to enroll in direct deposit to provide the most efficient path to receive payroll during this emergency period.”
Q: How should local governments identify and designate “essential” employees and contractors”?
A: Section 1-10 of the Executive Order requires each governmental body to determine its own Essential Governmental Functions and to identify employees and/or contractors necessary to perform these functions. This appears to be the only actual mandate to local governments in the Executive Order.
Municipal managers and administrators have significant discretion to designate essential employees and contractors, and the Executive Order does not require designation of specific personnel. Emergency Operations Plans may already designate specific employees performing essential functions, and will otherwise provide context to identify essential services and help determine which personnel provide them. The Executive Order provides additional general context in describing essential government services as all services “needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety and welfare of the public.”
Essential employees and contractors are exempt from the travel restrictions of the Executive Order. They should be provided credentials or other identification that demonstrate this status. At the same time, to warn against abuse, we have suggested that employers communicate to these employees and contractors the ground rules of being designated “essential.” Attached as Appendix B to this Alert is a sample communication that includes the requirement that credentials and identification only be used for essential operations.
Q: When must employees receive new federal paid sick leave and FMLA leave for child care?
A: Beginning April 2, 2020 – this is the effective date of the new laws providing periods of paid sick leave for full and part time employees and extending FMLA to require all employers with fewer than 500 employees to provide specified leave for child care. This emergency leave will remain in effect through December 31, 2020.
Our March 19, 2020 Alert provides additional detail and guidance on these new leave laws.
Q: Can employees combine the new emergency paid sick leave with existing paid leave and take them both at the same time?
A: No. Employees must use either their existing paid leave or the new emergency paid sick leave. They cannot use both at the same time, and they cannot use a portion of paid leave to supplement amounts received under the new emergency paid sick leave.
Q: Are the new emergency paid sick leave requirements permanent?
A: No. The paid sick leave law is specific to leave necessitated by specific circumstances related
to COVID-19, and cannot be rolled over after December 31, 2020.
Q: If local government solicited competitive bids for a project prior to the declaration of emergency and the issuance of the Executive Order, is it still required to conduct a public bid opening?
A: No. Local governments may still open bids. But bidders should not be permitted to attend the bid opening because such attendance is not an “essential activity,” nor is it an “essential government function” of the bidder.
It is our recommendation that bid openings be video recorded or live-streamed. Recording bid openings is a way to make the process fair and transparent. Local governments should issue addenda to their active bid solicitations, advising prospective bidders of the change in format for bid openings.
Q: Is remote notarization allowed if the signer and the notary cannot be at the same location?
A: No. Unlike many other states, Illinois does not allow remote notarization and the Executive Order did not provide any emergency relief from the normal notary rules. Springfield legislation to allow electronic notarization (SB 3698) was assigned to the Judiciary Committee on March 3, 2020. In Congress, S. 3533 would extend remote notarization to the 27 states (including Illinois) that do not currently allow for remote notarization if used in or affecting interstate commerce. This legislation has yet to become law. New York State has implemented remote notarization via video conferencing by Executive Order of the Governor.
APPENDIX A
EXECUTIVE SUMMARY OF EXECUTIVE ORDER 2020-10 — WHAT’S ALLOWED
Generally, individuals may leave their residences for the following purposes:
To carry out these “Essential Governmental Functions”
- All municipal services (by government employees or contractors) necessary for continuation of government operations
- All municipal services (by government employees or contractors) necessary for the health, safety, and welfare of the public
To support this list of “Essential Infrastructure”
- Food production, distribution, and sale
- Construction activities, including public works and housing construction
- Building management and maintenance
- Airport operations
- All utilities
- Distribution centers
- Roads and all public transportation
- Waste collection and recycling
- Internet, video, and telecommunications systems
To undertake these “Essential Businesses and Operations”
- Grocery and convenience stores
- Supermarkets
- Pharmacies
- Certified farmers’ markets
- Other establishments selling groceries and medicine
- Food and beverage manufacturers, producers, and sellers, including liquor stores and adult use cannabis dispensaries
- Stores that sell pet food and related products
- Animal shelters, kennels, and adoption facilities
- Charitable and social service providers
- Newspapers, television, radio, and other media services
- Gas stations and auto and bicycle repair shops and facilities
- Financial institutions
- Banks
- Currency exchanges
- Pawnbrokers
- Credit unions
- Appraisers
- Title companies
- Financial markets
- Financial product sales
- Hardware and supply stores
- Critical trades
- Plumbers
- Electricians
- Exterminators
- Cleaning and janitorial staff for commercial and government properties (but not residential)
- Security staff
- HVAC o Painting
- Moving and relocation services
- Mail, post, shipping, logistics, delivery, and pick-up services
- All educational institutions (for facilitating distance learning, critical research, or essential functions, but not for holding classes)
- Laundry services
- Restaurants for consumption off-premises
- Businesses that sell, manufacture, or supply products needed to work from home
- Businesses that support other businesses with these types of products/services
- Computers
- Audio/visual equipment
- Household appliances
- IT and telecommunications equipment
- Hardware
- Paints
- Electrical, plumbing, and heating material
- Sanitary equipment o Personal hygiene products
- Food and related products o Medical equipment
- Optics and photography equipment
- Food and beverages
- Chemicals
- Soaps and detergent
- Firearm and ammunition suppliers and retailers for purposes of safety and security
- All forms of transportation (including ride share services) necessary for Essential Activities
- Home-based care and services (including nannies)
- Residential facilities and shelters
- Professional services
- Legal
- Accounting
- Insurance
- Real estate (including appraisal and title)
- Day care centers granted an emergency license to operate
- Manufacture, distribution, and supply chain for critical products and industries
- Critical labor union functions
- Hotel and motels, for lodging and delivery or carry-out food services
- Funeral services
To maintain these levels of “Minimum Basic Operations” (while adhering to social distance guidelines)
- Minimum necessary to maintain inventory, preserve the physical plant and security, process payroll and employee benefits
- Minimum necessary to allow employees to work remotely
To do these “Essential Activities”
- Health and safety – such as going to see a doctor or going to buy medicine
- Supplies and services – such as going out to buy groceries or other services and supplies to maintain a residence
- Outdoor activity – such as going for a walk or to a public park, while adhering to social distance guidelines
- To take care of others (including pets) in another household
- To undertake Essential Businesses and Operations (as defined above)
- To maintain Minimum Basic Operations (as defined above)
To engage in these types of “Essential Travel” (while adhering to social distance guidelines)
- Travel for Essential Activities, Essential Government Functions, Essential Businesses and Operations, and Minimum Basic Operations (all as defined above)
- Travel to care for others (elderly, dependents, minors, persons with disabilities)
- Travel to schools to get materials for distance learning, meals, or related services
- Travel home from outside the jurisdiction
- Travel required by the police or court order
- Travel by non-residents to return to their homes outside Illinois
APPENDIX B
FORM COMMUNICATION TO EMPLOYEES/CONTRACTORS CONDUCTING ESSENTIAL GOVERNMENT FUNCTIONS
Pursuant to Executive Order 2020-10, the [City/Village] has identified specified Essential Government Functions needed to ensure continuing [City/Village] operations, and has designated specific employees and contractors who are necessary to the performance of those functions. Designation as an employee or contractor performing Essential Government Functions is subject to change at any time in the [City’s/Village’s] sole discretion. Employees or contractors performing Essential Government Functions will be exempt from the Executive Order’s restrictions on travel during the performance of their job duties, during travel to and from their home to the worksite(s), and during any additional travel necessary for the performance of the Essential Government Functions. The [City/Village] will provide authorized employees and contractors with credentials or other identification demonstrating that they are authorized by the [City/Village] to perform Essential Governmental Functions and travel to and from the sites necessary to complete those functions. These credentials are to be used solely for the purpose of performing the Essential Government Functions and for travel to and from the relevant worksite(s), and are not to be provided as authority to excuse the employee’s or contractor’s compliance with any other aspect of the Executive Order. The [City/Village] expects that each employee and contractor receiving such credentials will use them with the seriousness and gravity that these circumstances require. Any misuse of an employee’s or contractor’s credential to seek exemption from any aspect of the Executive Order unrelated to the Essential Government Functions will subject the employee and contractor to discipline up to and including termination.