April 15, 2020
On April 2, 2020, Tennessee Governor Bill Lee signed Executive Order 23 to require all persons in Tennessee to stay at home, except when engaging in Essential Activity or Essential Services.
Executive Order 21, signed March 30, 2020, continued previous restrictions, including limitation of social gatherings to fewer than 10 people, closure of fitness centers, restriction of visitation to nursing homes, retirement homes, and long-term care facilities, and closure of food service establishments to on-site service. Executive Order 21 closed businesses that perform close-contact personal services and entertainment and recreational gathering places to members and the public.
Executive Order 23, now extended by Executive Order 27, requires Tennessee citizens to stay at home unless engaged in an essential activity or essential service. These orders expressly do not repeal local orders. This means that the safer at home orders in Nashville/Davidson County, Knox County, Memphis, Shelby County, Tullahoma, and other local orders are not superseded and govern their respective jurisdictions in the more restrictive aspects.
When Do the Orders Take Effect?
Executive Order 21 will be effective and enforceable until 11:59pm on April 30, 2020, following an extension in Executive Order 27.
Executive Order 23, the Safer at Home directive, will be effective from 11:59pm on March 31, 2020 until 11:59pm on April 30, 2020, pursuant to an extension in Executive Order 27.
What Do the Orders Mean?
Executive Order 21 closes both businesses and organizations that perform close-contact personal services and entertainment and recreational gathering venues to members and the public. These include, but are not limited to: barber shops; hair salons; waxing salons; threading salons; nail salons or spas; spas providing body treatments; body-art facilities or tattoo services; tanning salons; or massage-therapy establishments or massage services; and night clubs; bowling alleys; arcades; concert venues; theaters, auditoriums, performing arts centers, or similar facilities; racetracks; indoor children’s play areas; adult entertainment venues; amusement parks; or roller or ice skating rinks.
Executive Order 23, now extended by Executive Order 27, requires Tennessee citizens to remain in their homes, except to engage in essential activity or essential services. The Order states employers shall not require, or allow, employees with COVID-19 to work. This condition is in place only for those employees who the employer knows have tested positive for COVID-19. The Order closes non-essential businesses for public use, including as referenced in Executive Orders 17 and 21, and encourages essential businesses to follow CDC guidelines.
Who Do the Orders Apply To?
The essential services identified in Executive Order 22 and applicable to Executive Orders 22, 23 and 27 are:
1. Personnel identified by the Cybersecurity and Infrastructure Security Agency of the United States Department of Homeland Security;
2. Health Care and Public Health Operations;
3. Human Services Operations;
4. Essential Infrastructure Operations;
5. Essential Government Functions;
6. Food and Medicine Stores;
7. Food and Beverage Production and Agriculture;
8. Organizations that Provide Charitable and Social Services;
9. Religious and Ceremonial Functions;
10. Media;
11. Gas Stations and Businesses Needed for Transportation;
12. Financial Institutions and Insurance Entities;
13. Hardware and Supply Stores;
14. Critical Trades;
15. Mail, Post, Shipping, Logistics, Delivery, and Pick-up Services;
16. Educational Institutions;
17. Laundry Services;
18. Restaurants for Off-Premises Consumption;
19. Supplies to Work from Home;
20. Supplies for Essential Businesses and Operations;
21. Transportation;
22. Home-based Care and Services;
23. Residential Facilities and Shelters;
24. Professional Services;
25. Manufacturing, Distribution and Supply Chain for Critical Products and Industries;
26. Hotels and Motels;
27. Funeral Services;
28. Businesses related to essential activity;
29. Any business or organization will ten or fewer people accessing the premises at a time, provided the business follows health guidelines; and
30. Minimum necessary activities required to maintain any business or organization.
Executive Order 21 can be found in full here.
Executive Order 22 can be found in full here.
Executive Order 23 can be found in full here.
Executive Order 27 can be found in full here.
What Should Businesses Do?
These Orders close non-essential businesses only for use by the public or members. Under Executive Order 22, an employer with knowledge that an employee has tested positive for COVID-19 cannot allow or require the employee to work.
We recommend full compliance with this and any applicable local safer at home orders. Businesses who do not comply face potential litigation from employees for requiring in-person work, particularly if employees have mandatory sick leave from recently-implemented laws (such as the FFCRA) or company-provided paid time off or sick leave available.
Additionally, we advise businesses that are subject to the Safer at Home directive to keep in mind the Federal WARN Act, Tennessee’s WARN Act, state and federal wage and hour laws (which remain applicable even during an employee’s remote work), state and federal discrimination and equal employment opportunity laws, the Families First Coronavirus Response Act, and any other applicable employment laws when making decisions related to compliance with the Safer at Home directive.
Even for businesses that are exempt from the applicable safer at home orders, we encourage efforts to allow employees to work from home to the extent possible and practicable. Further, many employees may be hesitant to come into work due to fear of COVID-19, and requiring in-person work can create complications during this time.
Changes in Workforce
Although these Orders do not restrict employment, you may be considering changes to your workforce for employee safety and in response to the undeniable economic impact of the pandemic. Such changes may include furloughing employees, laying off employees, or reducing an employees’ rate of pay/hours. We suggest you consider all available options carefully before making any decision. Whether notice is legally required as detailed below, we recommend all employers provide written notice to employees of their decision, including an explanation of the rationale and assurance that these measures are only being taken in response to the pandemic and with the ultimate goal of returning to business as usual in the near future. Goodwill toward your employees will go a long way in rebuilding the business.
Other Laws to Keep in Mind
New Federal Sick Leave Law
The Families First Coronavirus Response Act (FFCRA) became effective April 1, 2020.
Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
- The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.
If your business closed before or after April 1 due to lack of business, or is required to close pursuant to Federal, State or local directive, sick leave is not due.
Intermittent sick leave is permitted with the consent of the employer (it is not required).
If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reason five above (school and daycare closed) if an authorized officer of the business has determined that:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
Employers may require documentation of school or daycare closures in support of a request for sick or medical leave to care for a child out of school when no daycare is available. If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.
How Much to Pay – Employees must be paid based on their required compensation as follows:
- Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
- Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.
Emergency Federal Medical Leave Expansion Act
The Emergency Federal Medical Leave Expansion Act ("EFMLE") became effective April 1, 2020.
The EFMLE applies under the following circumstances:
- The EFMLE applies to employers with fewer than 500 employees (see below);
- Employees must be employed at least 30 calendar days at the time leave is requested (employees laid off after March 1 who had worked 30 days prior to layoff who are then rehired are eligible);
- The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
- A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
- The employee must be restored to their position upon return from leave.
- An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
Businesses with less than 50 employees are potentially exempt from providing EFMLE if an authorized officer of the business has determined that:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Governor Lee issued an executive order on March 19, 2020 to expedite unemployment payments. Workers may file a claim for unemployment benefits if they left work after being directed by a medical professional or health authority to isolate or quarantine due to COVID-19, intend to return to work, and are otherwise eligible for benefits. The one-week waiting period and in-person appearance have also been waived.
Visit our COVID-19 Hub for ongoing updates.