Earlier today, Governor Hogan enacted Amended and Restated Executive Order (20-03-23-01) closing all non-essential businesses in the State of Maryland by 5 p.m. today. Here’s what you need to know:

• Non-Essential Businesses include all businesses, organizations, establishments and facilities that are not part of the critical infrastructure sectors identified by the U.S. Department of Home Security’s Cybersecurity and Infrastructure Security Agency. If your business is included in a designated critical infrastructure sector, and therefore an Essential Business, it is not impacted by the Order. Essential Businesses are not impacted by the Order. Essential Businesses include a broad list of 16 industry types and guidance can be found here. Maryland has also offered interpretive guidance here. Please contact your M&S lawyer or one of the members of our task force listed if you require support to identify whether your business is Non-Essential and required to close by 5 p.m. today per the Order.
• While the Order states that all Non-Essential Businesses are “closed to the general public,” the interpretation of the Order by the Office of Legal counsel suggests that all Non-Essential Businesses are required to close generally. We understand that the qualification in the Order means that while a business should not permit customers or other invitees into the business or other establishment, and the business should generally be “closed,” the State of Maryland recognizes that employees may still need to report to facilitate staff working remotely, address perishable inventory, ensure the proper maintenance of facilities, provide physical security and undertake other business activities notwithstanding the closure of the business to the general public. What a Non-Essential Business can do in this regard will need to be addressed on a case-by-case basis.
• The closures of senior centers, restaurants and bars, fitness centers, theaters, malls, bingo halls, bowling alleys, pool halls, amusement parks, roller and ice skating rinks, golf courses, mini golf courses, driving ranges, social and fraternal clubs and any other organization subject to Title 4 of the Tax-General Article of the Maryland Code (amusement tax) remain in effect.
• Tattoo parlors, tanning salons, barber shops, beauty salons and all other businesses that provide esthetic services shall close by 5 p.m. today.
• State and local government buildings and facilities are not closed by this order, but additional social distancing restrictions will be put in place.
• While this Executive Order is not a shelter-in-place order, all employers are urged to promote work from home arrangements to the greatest extent possible.

If your business is a Non-Essential Business under the Order, you should promptly consider the following to temporarily close your business by 5 p.m. today:

1. Verify that IT policies are in place and disseminated to and understood by all who will be working from home. Are written information security, confidentiality, bring-your-own-device and similar policies in place or can they be quickly imposed? Are critical confidential information and personal information specifically safeguarded? Check any contractual or legal provisions (e.g., export control) that may prevent certain information to be processed offsite or by certain individuals.
2. Ensure that work-from-home policies are in place with clear expectations and communication procedures.
3. Classify employees necessary for operations that are essential and permitted to continue whether at the work facility or remotely.
4. For machinery and equipment, determine suspension and mothball requirements, weighing complexities and costs to preserve work-in-process.
5. For the facilities, determine heat, cooling and environmental (humidity and dryness) requirements.
6. If physical security is required, make appropriate arrangements.
7. Board approvals of actions and determinations should be documented in accordance with normal corporate governance.

We will follow with further guidance for closed businesses tomorrow, but we recommend addressing these action items today.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.