On Tuesday, March 24, 2020, both Maine’s governor and the City of Portland issued new executive orders to confront the COVID-19 pandemic. The regulatory situation has been changing almost daily, as state and local governments implement increasingly restrictive measures.
Maine Governor Janet Mills had already closed bars and restaurants by executive order on March 18 and banned gatherings of 10 or more people. Essential businesses that provide important services to the public have been allowed to remain open, while other “non-essential public-facing businesses” were encouraged but not legally required to close. With the latest March 24 order, that has changed.
Now, pursuant to the Executive Order dated March 24, all businesses statewide are subject to a range of measures from outright closure to enforceable regulations governing operation. Even businesses that are “essential” must, “to the maximum extent practicable” transition employees to work remotely and implement 6-foot social distancing practices for employees and customers. This means that we should be prepared at grocery and other stores providing essentials to see signs, tape, and rope to control and enforce distancing between customers in the check-out line.
Businesses that are not “essential” must cease operations and take measures to limit or prohibit entirely contact between people. Non-essential business activity and operation may continue PROVIDED: (1) the business does not allow in-person contact with customers, vendors, or other visitors; (2) the business does not require more than 10 workers to convene in a place where social distancing is impossible; AND (3) the business has employees work from home “to the maximum extent practicable.”
The Governor’s order is effective March 25 to April 8, 2020. The order does not impose fines, but incorporates penalties associated with the business license, permit, or authorization to do business, suggesting that suspension or revocation could be a consequence.
The same day, the City of Portland issued a “Proclamation Declaring Continued State of Emergency and Requirement to Stay at Home” effective March 25 through March 30, 2020.
The Portland order incorporates aspects of the Governor’s order applicable statewide, and further defines and categorizes essential and non-essential businesses. More notably, the Portland order requires a so-called “shelter in place,” whereby individuals residing in Portland are required to stay home.
The “stay at home” requirement has many exceptions, including but not limited to travel for necessary goods and services, outdoor exercise, and dog walking. When outside, individuals must at all times as is reasonably possible maintain a minimum of six feet between them and non-household members.
All businesses that do not provide essential services are required to close brick and mortar premises to employees, customers, and the public, except they can continue to access the premises to conduct activity that can’t be done remotely to keep the business running (e.g. processing mail, payroll, paying vendors and depositing checks).
The Portland order is enforceable by a $500 fine per occurrence.
A notable contrast between the orders is that the Maine State order broadly designates “legal . . . services” as an essential business, while the Portland order is narrower: “Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities.” As of this writing, the legal community is not certain how Portland City officials would interpret that language and some firms are approaching the matter on a case-by-case basis.
Other municipalities have issued their own proclamations and orders, for example Brunswick. City and Town websites should be consulted for the latest information.
This article is for informational and educational purposes and is not intended to be legal advice. You should consult legal counsel to assess the legal issues specific to your case. The attorneys at Libby, O’Brien, Kingsley & Champion have extensive experience in employment and regulatory law.