COVID-19 Coronavirus Executive Orders Restricting Business Activities – Implications for Asset Managers

Last updated on April 02, 2020.

This Dechert OnPoint summarizes Dechert’s analysis of the exceptions provided in executive and other similar orders in certain states and the District of Columbia that have restricted business activities in response to the COVID-19 coronavirus public health emergency. The OnPoint covers how the exceptions may affect the ability of asset managers and certain of their personnel to continue business activities in their offices in such states and the District of Columbia in advising registered funds, private funds or other accounts. In addition, the OnPoint discusses labor and employment law considerations related to the continued use of office space during the emergency, which could cause asset managers to seek to limit reliance on the exceptions.

The Federal Government has recognized asset management as a critical component of the country’s infrastructure through the Cybersecurity and Infrastructure Security Agency (CISA) list of critical infrastructure sectors (CISA list).¹ The CISA list includes the financial services sector,² and the description of that sector refers in broad terms to investment products and their service providers. Some of the orders discussed below specifically reference CISA while others do not. Even where an order does not specifically reference the CISA list, the recognition on the CISA list may be relevant in interpreting an order.

In any case, asset managers should limit reliance on the exceptions that permit some or all employees to physically come to work. They should only allow personnel who are performing critical functions that cannot be done remotely (like resetting servers) to go into the office while the orders are in place. Any such personnel should be entering the offices on a voluntary basis and asset managers should be sensitive to personnel with pre-existing conditions or household members with such conditions. Security procedures should be implemented to ensure that no other personnel are allowed to go into the office. An employee (performing critical functions) who has been diagnosed with COVID-19 coronavirus or who is suspected to have COVID-19 coronavirus (e.g., by being under an order of health authority, doctor or hospital to self-isolate), should not be permitted to go on-site. Dechert’s Labor and Employment team is available to provide fact-specific advice on these matters.

Further, a number of cities and counties in these states also have issued similar orders that any asset manager in the above jurisdictions may need to consider. Consideration must be given to whether or not the local action has been superseded by any state-level action. For example, the New Jersey order provides that “no municipality, county, or any agency or political subdivision of this State shall enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of [the New Jersey] Executive Orders, or which will in any way interfere with or impede their achievement.”

• Arizona: Arizona order 2020-18³  provides that “all individuals in the State of Arizona shall limit their time away from their place of residence or property” with certain exceptions, including employment in “Essential Functions” as defined in Arizona order 2020-12.⁴  For purposes of the Arizona orders, the term “Essential Function” includes certain financial institutions.⁵  Arizona order 2020-18 also provides that “non-essential businesses may continue to operate those activities that do not require in-person, on-site transactions and are encouraged to maintain at least minimum basic operations” including facilitating employees being able to continue to work remotely and related functions. It may be reasonable to conclude that asset managers should fall within the scope of financial institutions deemed essential and should be able to allow certain personnel to be in their Arizona offices. Even if they are not, asset managers should be able to allow certain employees to conduct minimum basic operations. Arizona order 2020-18 took effect on March 31, 2020, and Arizona order 2020-12 took effect on March 23, 2020.
  
• California: The California order⁶ requires all individuals living in the state “to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors” as set forth in the CISA list. Accordingly, personnel needed to maintain continuity of operations of asset managers should be permitted to be in their California offices under the California order. The California order took effect on March 18, 2020.
  
• Colorado: The Colorado order⁷ directs “all Coloradans to stay at home, subject to limited exceptions.” The Colorado order further requires “all businesses other than those qualified as ‘Critical Businesses’ under” certain public health orders “to close temporarily, except as necessary to engage in minimum basic operations needed to protect assets and maintain personnel functions.” Colorado Amended Public Health Order 20-24⁸ defines “Critical Business” to include “Financial Institutions, Including: banks and credit institutions; insurance, payroll, and accounting services; and services related to financial markets.” Accordingly, asset managers should be able to allow certain personnel to be in their Colorado offices. Even if they are not, asset managers should be able to rely on the exception for maintaining minimum basic operations. The Colorado order took effect on March 26, 2020.
  
• Connecticut: The Connecticut order⁹ requires all businesses and not-for-profit entities in the state to “employ, to the maximum extent possible, any telecommuting or work from home procedures that they can safely employ.” In addition, “non-essential businesses or not-for profit entities shall reduce their in-person workforces at any workplace locations by 100% ...” The term “essential businesses” is defined under guidance issued by the Department of Economic and Community Development, and includes “essential workers in the 16 critical infrastructure sectors” set forth in the CISA list.¹⁰ Accordingly, asset managers should fall within the scope of businesses that are essential and should be able to allow certain personnel to be in their Connecticut offices. The Connecticut order took effect on March 23, 2020.
  
• Delaware: The Delaware orders¹¹ collectively require that all physical locations of non-essential businesses¹² close through May 15, 2020, or until after “the public health threat of COVID-19 has been eliminated,” and that all individuals living within Delaware “shelter in place, at their home or place of residence,” with certain exceptions. Under the orders, essential businesses are defined as including businesses within the financial services industry, including those within the funds and investment advisory industry.¹³ Accordingly, asset managers should be able to allow certain personnel to be in their Delaware offices. The Delaware orders took effect on March 24, 2020.
  
• District of Columbia: D.C. Mayor's Order 2020-054¹⁴ requires "all individuals living in Washington, DC" to "stay at their place of residence" with certain exceptions. D.C. Mayor's Order 2020-43¹⁵ requires that all non-essential businesses temporarily cease all activities except Minimum Basic Operations, including security, payroll and benefits, cleaning and maintenance, and facilitation of remote work. Essential businesses are encouraged to remain open. Essential businesses are defined as including businesses within the financial services industry “including banks, credit unions, and related financial institutions.” Accordingly, it may be reasonable to conclude that asset managers should fall within the scope of businesses that are essential and should be able to allow certain personnel to be in their D.C. offices. Even if they are not, asset managers should be able to rely on the exception for maintaining Minimum Basic Operations. The D.C. order requiring residents to stay at home took effect on April 1, 2020. The D.C. order requiring the closure of certain non-essential businesses took effect on March 25, 2020.
  
• Florida: The Florida order¹⁶ provides that “senior citizens and individuals with a significant underlying medical condition…shall stay at home and take all measures to limit the risk of exposure to COVID-19” and “all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.” For purposes of the Florida order, the term “Essential Services” is defined by reference to CISA guidance that identifies as “Essential Critical Infrastructure Workforce” workers within the financial services industry who provide, process and maintain “capital markets activities” and “who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services.”¹⁷ Certain employees of asset managers should fall within the scope of the Essential Critical Infrastructure Workforce and, accordingly, asset managers should be able to allow such personnel to be in their Florida offices. The Florida order takes effect on April 3, 2020.
  
• Georgia: The Georgia order¹⁸ requires “all residents and visitors of the State of Georgia” to “shelter in place within their homes or places of residence” with certain limited exceptions, including those who are “part of the workforce for Critical Infrastructure” or those “engaged in the performance of…Minimum Basic Operations.” For purposes of the order, “Critical Infrastructure” is defined by reference to CISA Revised Guidance. "Minimum Basic Operations" is defined under the order as including the “minimum necessary to maintain the value of a business” and “the minimum necessary to facilitate employees…being able to work remotely.” Accordingly, asset managers should be able to allow certain personnel to be in their Georgia offices. Even if they are not, asset managers should be able to allow certain employees to conduct minimum basic operations. The Georgia order takes effect on April 3, 2020. 
  
• Illinois: The Illinois order¹⁹ requires all individuals living within Illinois “to stay at home or at their place of residence,” with certain exceptions. The order also requires that non-essential businesses and operations “cease all activities within the State except Minimum Basic Operations,” which includes “the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.”²⁰ Essential businesses and operations are “encouraged to remain open.” Essential businesses are defined under the executive order as including financial institutions.²¹ It may be reasonable to conclude that asset managers should fall within the scope of financial institutions deemed essential and should be able to allow certain personnel to be in their Illinois offices. Even if they are not, asset managers should be able to rely on the exception for maintaining Minimum Basic Operations. The Illinois order took effect on March 21, 2020.
  
• Maryland: Maryland order 20-03-30-01²² requires “all persons living in the State of Maryland” to “stay in their homes or places of residences” with certain exceptions. Maryland order 20-03-23-01²³ requires the closure of non-essential businesses, defined as “all businesses, organizations, establishments, and facilities not part of the [CISA framework].” Maryland further provides a “nonexhaustive list of businesses, organizations, and facilities that are included in the federal critical infrastructure sectors,” which are not required to close.²⁴ Essential businesses are defined under the executive order as including businesses within the financial services industry, including “securities and investment companies.”²⁵ Accordingly, asset managers should be able to allow certain personnel to be in their Maryland offices. The Maryland order requiring citizens to stay at home, Executive Order 20-03-30-01, took effect on March 30, 2020, and the Maryland order requiring non-essential business to close, Executive Order 20-03-23-01, took effect on March 23, 2020.
  
• Massachusetts: The Massachusetts order²⁶ requires all businesses not providing essential services to temporarily close brick-and-mortar premises to workers, customers and the public.²⁷  Businesses identified as providing COVID-19 Essential Services are “urged to continue operations” but follow certain social distancing protocols. Entities identified as providing COVID-19 Essential Services are defined to include entities with workers providing certain financial services (and certain other types of services).²⁸  It may be reasonable to conclude that asset managers should fall within the scope of entities that provide COVID-19 Essential Services and should be able to allow certain personnel to be in their Massachusetts offices. The Massachusetts order took effect on March 24, 2020. 
  
• Michigan: The Michigan order²⁹ states that “no person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.” According to the Michigan order, “workers who are necessary to sustain or protect life are defined as ‘critical infrastructure workers,’” and include certain workers set forth in the CISA list, as well as, specifically, workers employed in the financial services sector.³⁰ The Michigan order defines workers necessary to conduct minimum operations as “those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.” Employees of asset managers should fall under the definition of critical infrastructure workers by virtue of their work in the financial services industry; therefore, asset managers should be able to allow certain personnel to be in their Michigan offices.  The Michigan order took effect on March 24, 2020.
  
• Minnesota: The Minnesota order³¹ requires all persons currently living within the State of Minnesota to “stay at home or in their place of residence,” with certain exemptions. The order further requires that “all workers who can work from home must do so,” but exempts workers in specified Critical Sectors “who are performing work that cannot be done at their home or residence through telework or virtual work and can be done only at a place of work outside of their home or residence.”  Minnesota defines “Critical Sectors” under the executive order as including businesses within the financial services industry, including “workers at banks, credit unions, insurance companies, insurance agencies, and other financial services workers identified in the CISA Guidance.” Accordingly, asset managers should be able to allow certain personnel to be in their Minnesota offices. The Minnesota order took effect on March 27, 2020. 
  
• Nevada: The Nevada order³² provides that “all Nevadans are ordered to stay in their residences” with limited exceptions, including “to perform work necessary” at “Essential Licensed Businesses,” as defined in certain emergency regulations.³³  The emergency regulations consider “banks and financial institutions” to be essential licensed businesses that may remain open as long as they comply with certain social distancing and sanitation measures. It may be reasonable to conclude that asset managers should fall within the scope of financial institutions deemed Essential Licensed Businesses and should be able to allow certain personnel to be in their Nevada offices. The Nevada order took effect on April 1, 2020. 
  
• New Hampshire: The New Hampshire order³⁴ provides that “New Hampshire citizens shall stay at home or in their place of residence” with certain exceptions. The New Hampshire order further requires “all businesses and other organizations that do not provide Essential Services” to “close their physical workplaces and facilities to workers, customers, and the public and cease all in person operations.” The term “Essential Services” is defined in Exhibit A to the New Hampshire order and includes entities with workers providing certain financial services (and certain other types of services).³⁵ It may be reasonable to conclude that asset managers should fall within the scope of entities that provide Essential Services and should be able to allow certain personnel to be in their New Hampshire offices. The New Hampshire order took effect on March 27, 2020. 
  
• New Jersey: In relevant part, the New Jersey order³⁶ provides that “all businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” A business with employees that cannot perform via telework or work-from-home arrangements should use its best efforts to reduce staff to the “minimum number necessary to ensure that essential operations can continue.” Non-limiting examples of those types of employees are set forth in the order, including information technology maintenance workers, janitorial and custodial staff, and certain administrative staff. The terms of the order provide some flexibility to asset managers to make determinations as to what staff fall within these functions and could permissibly continue to be in the office. The New Jersey order took effect on March 21, 2020.
  
• New York: The New York order³⁷ provides that “all businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 100% ...” However, “an entity providing essential services or functions shall not be subject to the in-person restrictions.” In addition, the New York order states that “an entity providing essential services or functions whether to an essential business or a non-essential business” is not subject to the in-person work restriction to the extent the entity operates “at the level necessary to provide such service or function.” Depending on the facts and circumstances, it may be reasonable to conclude that asset managers should fall within the scope of essential businesses under the New York order and related guidance under the category of “financial institutions – services related to financial markets” and be able to allow certain personnel to be in their New York offices. While there is no guidance on which entities fall within the scope of “services related to financial markets,” certain participants in the asset management industry serve a critical role in providing liquidity to financial markets and keeping financial markets functioning or may otherwise qualify under this category. We understand from discussions with trade associations that a number of asset managers have interpreted the exception to encompass their businesses. The relevant parts of the New York order took effect on March 22, 2020.
• North Carolina: The North Carolina order³⁸ requires “all individuals currently in the State of North Carolina . . . to stay at home” with certain exceptions. The North Carolina order further provides that “all businesses and operations in the State, except COVID-19 Essential Businesses and Operations, . . . are required to cease all activities within the State except Minimum Basic Operations.”³⁹ The term “COVID-19 Essential Businesses and Operations” is defined to include businesses and workers set forth in the CISA list, as well as certain financial institutions.⁴⁰  It may be reasonable to conclude that asset managers should fall within the scope of financial institutions deemed essential and should be able to allow certain personnel to be in their North Carolina offices. Even if they are not, asset managers should be able to rely on the exception for maintaining Minimum Basic Operations. The North Carolina took effect on March 30, 2020.
  
• Ohio: The Ohio order⁴¹ provides that all individuals living within Ohio must stay at home except as permitted in the order and “all businesses and operations in the State,” with certain exceptions, “are required to cease all activities within the State.” Essential businesses and operations, including financial and insurance institutions, are encouraged to remain open.⁴² Businesses other than essential businesses covered by the order can maintain minimum basic operations.⁴³ Additionally, the Ohio order permits individuals to leave their homes to engage in work necessary to provide essential infrastructure, including “building management and maintenance;” “cybersecurity operations;” and “internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).” It may be reasonable to conclude that asset managers should fall within the scope of businesses that are essential and should be able to allow certain personnel to be in their Ohio offices. Even if they are not, asset managers should be able to rely on the exception for maintaining minimum basic operations. The Ohio order took effect on March 23, 2020.
• Oregon: The Oregon order⁴⁴ imposes a number of restrictions aimed at ensuring that “to the maximum extent possible, individuals stay at their home or at their place of residence.” Among other provisions, the order requires that “all business and non-profit entities with offices in Oregon shall facilitate telework and work-at-home by employees, to the maximum extent possible.” Further, the Oregon order prohibits “work in offices…whenever telework and work-at-home options are available, in light of position duties, availability of teleworking equipment, and network adequacy.” Accordingly, asset managers should be able to allow necessary personnel to be in their Oregon offices. The Oregon order took effect on March 23, 2020.
  
• Pennsylvania: Unless an asset manager manages insurance and employee benefit funds, it is not a life-sustaining business permitted to continue physical operations under the Pennsylvania order.⁴⁵ There is a specific waiver process in Pennsylvania that an asset manager can use if it concludes it does not fall within the exception. However, a related FAQ⁴⁶ issued by the Pennsylvania governor’s office makes clear that non-life-sustaining businesses can allow a limited number of employees onsite for security, to process essential functions, to maintain critical operations and to maintain compliance.⁴⁷ Such employees must follow social distancing and mitigating guidance. As a result, employees necessary to critical functions of asset managers should be permitted to be in a Pennsylvania asset manager’s offices under this exception. The Pennsylvania order took effect on March 19, 2020, with enforcement initially scheduled to begin on March 21, 2020. However, it was announced on March 21, 2020 that enforcement would be delayed until March 23, 2020.
  
• Tennessee: The Tennessee order⁴⁸ provides that “all persons in Tennessee are urged to stay at home, except for when engaging in” certain activities or “Essential Services,” as defined in the order. The Tennessee order defines the term “Essential Services” to include businesses and workers set forth in the CISA Revised Guidance, as well as certain financial institutions.⁴⁹ Attachment A also deems essential “any other business or organization that operates at all times with ten (10) or fewer persons accessing the premises of the business or organization at a time, including employees, customers, and other visitors” and “the minimum necessary activities required to maintain any business or organization, whether essential or not.” It may be reasonable to conclude that asset managers should fall within the scope of financial institutions deemed essential and should be able to allow certain personnel to be in their Tennessee offices. Even if they are not, asset managers should be able to allow certain employees to conduct the permissible minimum necessary activities.
  
• Texas: The Texas order⁵⁰ does not mandate closure of offices; however, the order provides that: “for offices and workplaces that remain open, employees should practice good hygiene and, where feasible, work from home in order to achieve optimum isolation from COVID-19.” Accordingly, asset managers should be able to allow certain employees to work at their Texas office locations. The Texas order took effect on March 20, 2020.
• Virginia: The Virginia order, Executive Order 55,⁵¹  requires “all individuals in Virginia” to “remain at their place of residence” except as provided in the order and in Executive Order 53.⁵²  Executive Order 53 requires closure of recreational and entertainment businesses, as well as certain retail businesses deemed non-essential. The order further states that “[a]lthough business operations offering professional rather than retail services may remain open, they should utilize teleworking as much as possible.” Accordingly, asset managers should be able to allow certain personnel to be in their Virginia offices. Executive Order 55 took effect on March 30, 2020, and Executive Order 53 took effect on March 23, 2020. 
  
• Washington: The Washington order⁵³ requires all people in Washington State to “immediately cease leaving their home or place of residence” except for employment in certain essential business services or to perform basic minimum operations and as otherwise permitted in the order.⁵⁴ Essential businesses are encouraged to remain open and maintain operations. All non-essential businesses must cease operations “except for performing basic minimum operations.”⁵⁵ Essential businesses are defined as including businesses within the financial services industry. Accordingly, it may be reasonable to conclude that asset managers should be essential businesses having personnel employed in essential business services. Such asset managers would be able to allow such personnel to be in their Washington State offices. Even if they are not, certain personnel of asset managers would still be able to perform basic minimum operations. The Washington order took effect on March 25, 2020. 
  
• Wisconsin: The Wisconsin order⁵⁶ provides that all individuals in Wisconsin must stay at home except to operate Essential Businesses and Operations or perform non-essential Minimum Basic Operations⁵⁷ and as otherwise provided in the order. All businesses with a facility in Wisconsin, except Essential Businesses and Operations, are required to cease all activities at such facilities, except Minimum Basic Operations. The definition of Essential Businesses and Operations includes businesses and workers set forth in the CISA list, as well as financial institutions and services, defined as “banks, credit unions, and other depository or lending institutions; licensed financial service providers; insurance services; personnel necessary to perform essential functions at broker dealers and investment advisor offices.” Accordingly, asset managers should be able to allow certain personnel to be in their Wisconsin offices. The Wisconsin order took effect on March 25, 2020. 
  

This OnPoint is not intended to be a comprehensive review of all potentially applicable executive orders. 

Asset managers should continue to monitor developments in the applicable jurisdictions as developments are occurring rapidly.

Footnotes

1) Dept. of Homeland Security, Cybersecurity and Infrastructure Security Agency, “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response” (Mar. 28, 2020).

2) Cybersecurity and Infrastructure Security Agency, “Financial Services Sector”.

3) Ariz. Exec. Order No. 2020-18 (Mar. 30, 2020). 

4) Ariz. Exec. Order No. 2020-12 (Mar. 23, 2020). 

5) For purposes of the Arizona orders, financial institutions include: “[b]anks, currency exchanges, consumer lenders, including but not limited to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions and institutions selling financial products.”

6) Cal. Exec. Order No. N-33-20 (Mar. 19, 2020).

7) Colo. Exec. Order No. D 2020 017 (Mar. 25, 2020).

8) Colo. Amended Public Health Order No. 20-24 (Mar. 25, 2020). 

9) Conn. Exec. Order No. 7H (Mar. 20. 2020).

10) Frequently Asked Questions on the State of Connecticut’s actions related to COVID-19, Office of Governor Ned Lamont (Mar. 22, 2020).

11) Fourth Modification of the Declaration of a State of Emergency for the State of Delaware Due to A Public Health Threat (Mar. 22, 2020); Fifth Modification Of The Declaration Of A State Of Emergency For The State Of Delaware Due To A Public Health Threat (Mar. 22, 2020).

12) The Delaware orders do allow for non-essential businesses to “continue to offer goods and services over the internet.” Moreover, the Delaware orders also permit certain “Minimum Basic Operations,” defined as including (a) “the minimum necessary activities to maintain the value of the business's inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions,” and (b) “the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.” Such Minimum Basic Operations must comply with certain social distancing requirements “to the extent possible.”

13) The Delaware orders define essential businesses as including “businesses that employ or utilize” workers who “support financial operations, such as those engaged in the selling, trading, or marketing of securities, those engaged in giving advice on investment portfolios, and those staffing data and security operations centers.” See also Delaware List of Essential and Non-Essential Businesses (Mar. 22, 2020).

14) D.C. Mayor's Order No. 2020-054 (Mar. 30, 2020).

15) D.C. Mayor’s Order No. 2020-43 (Mar. 24, 2020).

16) Fla. Exec. Order No. 20-91 (April 1, 2020). 

17) CISA Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During Covid-19 Response, Version 2.0 (Mar. 28, 2020) (CISA Revised Guidance).

18) GA Exec. Order 04.02.20.01 (April 2, 2020). 

19) Ill. Exec. Order No. 2020-10 (Mar. 20, 2020).

20) For purposes of the Illinois order, “Minimum Basic Operations” are defined as including (a) “the minimum necessary activities to maintain the value of the business's inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions,” and (b) “the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.” Such Minimum Basic Operations must comply with certain social distancing requirements “to the extent possible.”

21) For purposes of the Illinois order, “financial institutions” are defined as “[b]anks, currency exchanges, consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products.”

In addition, the order defines essential businesses as including within its scope “Professional services, such as legal services, accounting services, insurance services, real estate services (including appraisal and title services).”

22) Md. Exec. Order No. 20-03-30-01 (Mar. 30, 2020). 

23) Md. Exec. Order No. 20-03-23-01 (Mar. 23, 2020).   

24) Maryland Office of Legal Counsel, Interpretive Guidance (Mar. 23, 2020).

25) Under the Maryland order essential businesses within the financial services sector are defined as including, but not limited to: “(i) banks and credit unions, (ii) non-bank lenders, (iii) payroll processing companies, (iv) payment processing companies, (v) armored car companies, (vi) insurance companies, (vii) securities and investment companies, (viii) accounting and bookkeeping firms."

26) Mass. COVID-19 Order No. 13 (Mar. 23, 2020).  

27) Massachusetts encourages businesses and organizations not on the list of essential services “to continue operations through remote means that do not require workers, customers, or the public to enter or appear at the brick-and-mortar premises closed by the order.”  

28) For purposes of the Massachusetts order, businesses within the financial services industry deemed to provide COVID-19 Essential Services are entities with “workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities); workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers); workers who support financial operations, such as those staffing data and security operations centers.” See Exhibit A of the Order of the Governor Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces and Prohibiting Gatherings of More Than 10 People (Mar. 23, 2020).

29) Mich. Exec. Order No. 2020-21 (Mar. 23, 2020). 

30) The Michigan order requires businesses and operations that employ critical infrastructure workers to inform workers of their designation as critical infrastructure workers in writing (with a grace period allowing oral designations through March 31, 2020) and to adopt social distancing practices. 

31) Minn. Exec. Order No. 20-20 (Mar. 25, 2020).

32) Nev. Directive No. 010 (Mar. 31, 2020). 

33) Emergency Regulation of the Nevada Department of Public Safety, Division of Emergency Management NAC 414 (Mar. 20, 2020). 

34) N.H. Emergency Order No. 17 (Mar. 26, 2020).

35) For purposes of the New Hampshire order, businesses within the financial services industry deemed to provide Essential Services are “banks, financial services institutions, credit unions, insurance, payroll, regional development corporations, and accounting services,” as well as entities with “workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities); workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers); and workers who support financial operations, such as those staffing data and security operations centers.” See N.H. Emergency Order No. 17, Exhibit A (Mar. 26, 2020). 

36) N.J. Exec. Order No. 107 (Mar. 21, 2020).

37) N.Y. Exec. Order No. 202.8 (Mar. 20, 2020); see also Governor Cuomo Issues Guidance on Essential Services Under The ‘New York State on PAUSE’ Executive Order, Governor Andrew M. Cuomo Press Room (Mar. 20, 2020).

38) N.C. Exec. Order No. 121 (Mar. 27, 2020). 

39) For purposes of the North Carolina order, “Minimum Basic Operations” include: “the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or related functions” and “the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.”

40) For purposes of the North Carolina order, financial institutions include the following: “bank, currency exchanges, consumer lenders, including but not limited to, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products.”

41) Ohio Director of Health Stay At Home Order (Mar. 22, 2020).

42) Such institutions include “consumer lenders, including but not limited, to pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, payday lenders, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products.”

43) Which includes the “minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions” and the “minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.”

44) Or. Exec. Order No. 20-12 (Mar. 23, 2020).

45) Pa. Exec. Order of The Governor of The Commonwealth of Pennsylvania Regarding the Closure of All Businesses that Are Not Life Sustaining (Mar. 19, 2020).

46) Governor Tom Wolf, “Life Sustaining Business Frequently Asked Questions” (Mar. 21, 2020).

47) The PA Life-Sustaining Business FAQ Provides: “May businesses which are required to suspend physical operations maintain limited in-person essential personnel for security, processing of essential functions, or to maintain compliance with federal, state or local regulatory requirements? Businesses suspending physical operations must limit on-site personnel to maintain critical functions, and in all cases follow social distancing and COVID-19 mitigation guidance provided by the PA Department of Health and CDC.”

In addition, guidance under the Pennsylvania order as to what entities fall within the scope of a life-sustaining business was updated after conversations with businesses, stakeholders and individuals, and in consultation with the Department of Health on March 20, 2020. However, this did not change the treatment of asset managers other than those that manage insurance and employee benefit funds. See Governor Tom Wolf, “Updated Industry Operation Guidance” (Mar. 21, 2020).

48) Tenn. Exec. Order No. 22 (Mar. 30, 2020). 

49) For purposes of the Tennessee order, financial institutions include the following: “banks, currency exchanges, consumer lenders, including but not limited to payday lenders, pawnbrokers, consumer installment lenders, sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, institutions selling financial products.”

50) Tex. Exec. Order No. GA-08 (Mar. 19, 2020).

51) Va. Exec. Order No. 55 (Mar. 30, 2020). 

52) Va. Exec. Order No. 53 (Mar. 23, 2020). 

53) Wash. Proclamation No. 20-25 (Mar. 23, 2020). 

54) Employment in essential business services means an essential employee performing work for an essential business as identified in the Washington Essential Critical Infrastructure Workers list or carrying out minimum basic operations for a non-essential business. The following are listed as members of the essential workforce: “workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities); workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers); workers who support financial operations, such as those staffing data and security operations centers.” See Essential Critical Infrastructure Workers (Mar. 23, 2020). Essential businesses are defined by reference to having employees that perform work for an essential business as identified in the list. 

55) The term basic minimum operations is defined under the Washington order to include “the minimum activities necessary to maintain the value of the business’ inventory, preserve the condition of the business’ physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees of the business being able to continue to work remotely from their residences, and related functions.”

56) Wis. Emergency Order No. 12: Safer at Home Order (Mar. 24, 2020).

57) Minimum Basic Operations is defined to include “the minimum necessary activities to maintain the value of the business's inventory, preserve the condition of the business's physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions, including where these functions are outsourced to other entities” and “the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.”

This update is authored by Philip T. Hinkle, Nicolle L. Jacoby, Mark D. Perlow, Sozi Pedro Tulante, David A. Vaughan, Erin Randall, and Samuel Scarritt-Selman.