March 26, 2020

Update on Vermont COVID-19 Essential Business

The Vermont Agency of Commerce and Community Development has issued additional guidance for businesses that includes important clarifications relating to Gov. Scott’s Stay Home, Stay Safe Executive Order.

This update includes new information that will help businesses determine whether they may continue operations, and how they may seek individual determinations to be classified as Essential Businesses if they feel they have been misclassified or if the current guidance leaves questions as to their particular status.

Vermont Agency of Commerce and Community FAQ page

The Agency has published an FAQ page that provides significant new details about the agency’s interpretation of the Order.

Baseline Prohibition: in-person business operations

Generally speaking, the Order prohibits in-person business operations except for those deemed critical to public health and safety, as well as economic and national security (in short, “Essential Businesses”).

So, before turning to the Essential Business exception, the first question is whether the business is conducting in-person operations at all. If not, the business may continue to operate without reference to whether it is considered an Essential Business. The FAQ defines “in-person” to occur when “one person to come into contact with another person,” whether a co-employee, customer or member of the public. This may occur because people share a workspace, must interact with a customer, or have incidental close contact outside of the CDC-recommended social distancing.

Again, if a business operation does not require an employee to come into contact with another person, that operation is not considered to be within the scope of the order and is not required to stop operations.

Exception for Essential Businesses

The Essential Businesses exception arises for businesses that will necessitate in person operations. The Order itself begins to enumerate types of business that would meet the exception, and the Agency has posted an NAICS Code List that includes a listing of all business class codes, with a designation as to whether the businesses under each class code may continue operations. Businesses should check this list to determine if their industry is designated as critical or not. 

Further, the Federal Cybersecurity and Infrastructure Security Agency (CISA) has issued a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response. The Vermont Agency of Commerce has stated that all business activities and workers identified as essential in the CISA Guidance are deemed critical to public health, safety, or economic and national security in Vermont. Businesses, organizations, or entities with workers identified in the CISA memorandum may remain operational during the COVID-19 response. Even if a business is identified as not critical on the Vermont NAICS list, it may continue operations if it is included in the CISA Guidance.

The list of essential businesses that is included in the CISA Guidance is much more comprehensive than the Vermont Order, and will allow many businesses to continue operations. For example, the CISA Guidance includes a much broader definition of “financial services” that includes:

  • 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.

Essential Business Must Continue to Operate Utilizing Best Practices

It is important to note that all business, including Essential Businesses, that continue operations must comply to the fullest extent possible to the “social distancing” and other operational directives of the Order. For some businesses, these directives include operational adjustments “to the extent possible” for orders to be placed remotely and picked up curbside. To date, there has been no clarification of what is meant by the phrase “to the extent possible” in this context.

Can I appeal my business’s classification or seek clarifying guidance?

Yes. If a business believes it has been misclassified, or if the published guidance leaves questions about where in the “grey area” a particular business may be, the Agency has established a process to seek further guidance from the Agency of Commerce by filling out a Request for Continuation of Business Operations form. The agency has committed to responding within 24 hours, although Commerce Secretary Kurrle asked for patience as they work through the caseload. 

How will the Stay Home order be enforced?

The Department of Public Safety has recommended to Vermont municipal leaders and law-enforcement executives that enforcement of this executive order be handled primarily through education and voluntary compliance.

Commerce Secretary Kurrle told a Vermont legislative committee on Wednesday that the state is relying on Vermonters to comply with the orders and use good judgment in determining their essential status. Kurrle said, “In trying to decide if you should be open for business, you need to be able to say, ‘I need to do this, and if I don’t it will cause harm.’”

The absence of an enforcement mechanism in the Order itself should be viewed with caution as other consequences to operating in non-compliance with the Order could arise. Businesses should be aware that there could be many other liability, insurance, reputational, or other negative effects of operating in non-compliance with the Order.

Visit our COVID-19 Resource Center for more information.


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