Dispute Resolution Commission Begins Issuing Advisory Opinions April 17, 2020

dmc small, dispute resolution commissionDispute Resolution Commission Begins Issuing Advisory Opinions
By: David M. Cuppage

The Ohio Stay At Home Order Dispute Resolution Commission (the “Commission”) has issued several Advisory Opinions and Recommendations so far.

The Commission has determined the following businesses are “essential:”

  • Businesses providing car washing services are essential if operating within the following parameters: 1) employees have no direct interactions with customers; 2) employees do not hand-wash or hand-dry vehicles; 3) employees maintain social distancing and comply with the other requirements outlined in the Order; and 4) the number of employees is limited to only those necessary to operate the business within these parameters.
  • Government contractors providing services to first responder vehicles are essential businesses so long as employees maintain social distancing and comply with the other requirements outlined in the Order.
  • Businesses which offer products that are both essential and nonessential, including the sale of N-95 face masks, latex gloves, anti-bacterial soap, anti-bacterial shampoo, and hand sanitizer. The Commission found that this business is essential and may continue to operate and maintain its essential lines of business and, to a limited extent, non-essential lines of business provided that:
    • (1) all non-essential activities are strictly incidental to essential lines of business; and
    • (2) the business is being conducted in accordance with the Order’s requirements that attach to businesses engaged in essential functions.  If the sale of non-essential products becomes more than incidental for the business, it loses its essential status.  A business may not use the form of essential lines of business as justification for receiving essential business status when, in substance, the business’ primary line of business activity is non-essential.  Therefore, such businesses are an essential business provided that its primary line of business is limited to the sale of the essential goods outlined in its request: N-95 face masks, latex gloves, anti-bacterial soap, anti-bacterial shampoo, and hand sanitizer.
  • Businesses which sells retail products listed in paragraph 12.b. of the Order, including food products and non-prescription medication. The Commission found that this business is essential and may continue to operate and maintain its essential lines of business and, to a limited extent, non-essential lines of business provided that:
    • (1) all non-essential activities are strictly incidental to essential lines of business; and
    • (2) the business is being conducted in accordance with the Order’s requirements that attach to businesses engaged in essential functions.  If the sale of non-essential products becomes more than incidental for the business, it loses its essential status.  A business may not use the form of essential lines of business as justification for receiving essential business status when, in substance, the business’ primary line of business activity is nonessential.
  • Businesses providing mulching services as a part of other landscaping or construction performed at a given premises are essential under the Order, but this work needs not be coupled with other landscaping or construction work in order to be deemed essential. Paragraph 12.a. of the Order adopts the list of essential workers provided by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency’s (CISA) updated Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (“CISA Memo”).  The CISA Memo lists landscaping as an essential business.

However, the Commission has determined the following businesses to be not essential:

  • Pet grooming businesses are not deemed to be essential businesses.
  • Businesses selling cannabidiol (CBD) products are not deemed to be essential businesses.

It is important for all businesses to carefully review the Stay At Home Order and be prepared to document its position that it is an essential business. Documentation would include identifying core businesses, product inventory, services, customer contracts, purchase orders, and job sites worked.

The attorneys at McCarthy Lebit remain available to discuss any questions or needs that your business may have. We are continuing to stay apprised of COVID-19 developments and will continue to update our materials accordingly.

David Cuppage is a Principal at the Cleveland, OH-based law firm McCarthy, Lebit, Crystal & Liffman.

 

While we would be thrilled to work with all individuals, institutions and companies that read our advisories, we  want to clarify that these insights do not form a lawyer-client relationship and represent only general guidance without access or reference to all of the specific facts and circumstances.  If you do wish to engage McCarthy Lebit on a specific matter, please contact us by calling 216-696-1422 or by filling out an inquiry form located here.  If you are already a firm client, please contact the McCarthy Lebit attorney you work with to discuss these advisories and/or the nature of your concern.  In closing, please understand that the law, especially during this pandemic, is changing rapidly and we would recommend that you regularly contact your legal counsel to ensure that your actions are taken based on the most up-to-date versions of the laws.

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