ACCG Legal review of Kemp's Shelter-In-Place Order

The ACCG and GMA legal departments prepared the following summary outlining the local government implications of Governor Brian Kemp's Shelter-In-Place Executive Order

The Association of County Commissioners of Georgia (ACCG) and Georgia Municipal Association (GMA) legal departments prepared the following summary outlining the local government implications of the Executive Order; the summary incudes


From 6:00 p.m. on Friday, April 3, 2020 until 11:59 p.m. on April 13, 2020 (or later, if the Public Health State of Emergency and this Executive Order are extended), all local government powers contained in Titles 36 and 38 are suspended as they relate to the enforcement of any local government ordinance or order adopted or issued since March 1, 2020 with the stated purpose or effect of: (1) responding to the public health emergency; (2) ordering residents to shelter in place; (3) ordering a quarantine; or (4) combatting the spread of COVID-19, if that ordinance or order is different in any way from the Governor’s Order.


Local Ordinances and Orders. For the duration of the executive order and any extension thereof, all declarations, ordinances, orders, and other actions taken by local governments since March 1, 2020, related to COVID-19 are suspended (i.e., they are no longer in effect and cannot be enforced) unless they are exactly the same as the Executive Order. This includes any ordinances or orders related to shelter in place, closing of borders, bans on hotel usage, essential services, curfews, prohibited utility disconnection, etc. Because this suspension is tied to COVID-19 measures, local governments retain the power to take emergency actions for other purposes (e.g., in response to a natural disaster or nonCOVID-19-related health matters).


Any determination of an “essential business” by a local government is suspended. The businesses, establishments, corporations, and organizations defined by the U. S. Department of Homeland Security as “essential critical infrastructure workforce” may not be impeded by a local government or a local government ordinance. Any businesses, corporation, organization, or industry trade group with questions regarding its status as critical infrastructure should be directed to the Georgia Department of Economic Development.


Similarly, except as explained below, local governments may not adopt any ordinances or orders related to COVID-19 (even if the ordinance or order is exactly the same as this Executive Order). However, local governments may adopt ordinances or orders “as are designed to enforce compliance with this Order.” It is not clear what type of ordinance or order would fit within this authority since only the state is authorized by the Executive Order to require the closure of a business. So, the local government should not adopt an ordinance to require the closure of a business that is not in compliance with the Executive Order.


Enforcement. Violation of the Executive Order is a misdemeanor. The language of the Executive Order, the Governor’s Handout, and O.C.G.A. § 38-3-4 regarding enforcement may create some confusion.


State law requires local government law enforcement agencies to enforce Executive Orders such as this. So, according to the terms of Executive Order, a county or city in theory may instruct its police department (for those counties having a police department) to assist in the enforcement of the Executive Order generally, but not require the closure of a business that is not in compliance. As a constitutional officer, it is up to the sheriff to determine his or her responsibilities under the order. However, the Executive Order specifically gives enforcement of business closure to the Georgia Department of Public Health, Department of Public Safety, and any state department or state officer deputized by the Governor or GEMA.


However, it appears that the Governor’s intent expressed in his handout is that local law enforcement has not been deputized to enforce the Executive Order at all. The handout states that only state law enforcement with Peace Officer Standards and Training (POST) Council certification will be charged with enforcement. This appears to be a slight conflict with the language of the actual Executive Order and the actual Executive Order should control. (EDITOR'S NOTE: Subsequently, Executive Order 04.03.20.01 provided authorization to county sheriff's and their deputies, to enforce the business-closures portions of the Shelter-At-Home Executive Order, but did not mention enforcement of the social-distancing aspects of the Shelter-In-Place Executive Order.)


Requirements on Local Governments.

Social Distancing in or on Local Government Locations. Local governments must require six feet between each person in or on a local government property. This applies to officials, employees, and citizens. It does not apply to individuals who live together when they are outside of their homes. If the minimum distance of six feet cannot be maintained, then the local government location may only have a maximum of 10 people present at a time. So, in theory, a local government could enact an ordinance requiring the minimum physical distance or 10-person maximum in its buildings, facilities, or parks.


Providing Services Related to Construction and Applications. The requirements of Executive Order 03.20.20.02 (Reducing Regulations to Assist the State’s Response to the Spread of COVID-19), as amended by Executive Order No. 03.30.20.02, remain in effect. Local governments, superior court clerks, tax commissioners, and other officials are urged by those Orders to ensure that the recording offices remain open and available to receive applications and filings to the extent possible while adhering to Centers for Disease Control (CDC) guidelines. Developers and builders are allowed to use private professional providers in accordance with O.C.G.A. 8-2-26(g)(4)-(5) for plan review and inspection of projects identified by O.C.G.A. 8-2-26(g)(17).


Treatment of Employees Deemed Essential Critical Infrastructure Workforce. Certain services of local government are defined by the U. S. Department of Homeland Security as “essential critical infrastructure workforce.” These departments or employees include:

1. Employees who manage health plans, billing and health information, who cannot work remotely.

2. Employees and volunteers in emergency management, law enforcement, fire and rescue services, emergency medical service, jails, correctional institutions, search and rescue.

3. Employees at 9-1-1 call centers and public safety answering points who cannot perform their duties remotely.

4. Employees that maintain equipment and services supporting law enforcement emergency service and response operations.

5. Employees responding to abuse and neglect of children, elders, and dependent adults.

6. Employees who support weather disaster and natural hazard mitigation and prevention activities. COVID-19 Information Released: 4/2/20 3

7. Security staff maintaining building access control and physical security measures.

8. Employees in cafeterias used to feed employees, particularly employee populations sheltered against COVID-19.

9. Employees essential for food assistance programs and government payments.

10. Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure.

11. Employees supporting or enabling transportation functions, including bus drivers, dispatchers, maintenance and repair technicians, intermodal transportation personnel, and workers that maintain and inspect infrastructure.

12. Mass transit employees, employees providing critical transit services, and/or critical or routine maintenance to mass transit infrastructure or equipment.

13. Employees supporting car sharing services.

14. Vehicle maintenance employees

15. Employees supporting the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenances, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues.

16. Employees who support the availability and access to needed facilities, transportation, energy and communications, such as road clearing.

17. Network operations staff including information technology managers and staff, security personnel, HVAC and electrical engineers, software and hardware engineers, and database administrators that manage the network or operate facilities

18. Engineers, technicians, and other employees responsible for infrastructure construction and restoration.

19. Central office personnel to maintain and operate central office, data centers, and other network facilities and critical support personnel assisting front line employees

20. Customer service and support staff.

21. External affairs personnel

22. Employees who support command centers

23. Data center operators.

24. Employees who support communication systems and information technology and work from home solutions used by law enforcement, public safety, and public works.

25. Employees who ensure the continuity of building functions

26. Elections personnel

27. Employees supporting the operations of the judicial system

28. Employees who support mission essential functions and communications networks

29. Employees supporting Census 2020

30. Employees who maintain digital infrastructure supporting other critical government operations.

31. Employees who support necessary credentialing, vetting, and licensing operations for critical infrastructure workers.

32. Employees who perform title search, notary and recording services in support of mortgage and real estate services and transactions.

33. Employees of the animal shelter. COVID-19 Information Released: 4/2/20 4

34. Employees who support food, shelter, and social services for needy groups and individuals, including in need populations and COVID-19 responders.

35. Employees providing support to the elderly and disable populations.

36. Employees supporting the construction of housing.

37. Any other employee or department identified by the Department of Homeland Security as “essential critical infrastructure workforce” in its guidance dated March 19, 2020 and revised on March 28, 2020.


Local governments must meet the following 16 requirements to the critical departments and employees:

1. Screening and evaluating workers exhibiting signs of illness such as cough, shortness of breath and fever over 100.4 degrees.

2. Requiring workers exhibiting signs of illness to not report to work or to seek medical attention.

3. Enhancing sanitation of the workplace.

4. Requiring hand washing or sanitation by employees at appropriate places at the work location.

5. Providing personal protective equipment (PPE) as available and as appropriate to the function and location of the employee.

6. Prohibiting employees to gather in groups during work hours.

7. Permitting employees to take breaks and meals outside, in their office or personal workspace, or in other areas where at least six feet of space may be maintained.

8. Implementing teleworking for all employees when possible.

9. Implementing staggered shifts for all employees when possible.

10. Holding all meetings and conferences virtually, when possible.

11. Delivering intangible services remotely when possible.

12. Discouraging employees from using another employee’s phone, desk, office, work tools or equipment.

13. Providing disinfectant and sanitation products for employees to clean their workspace, equipment and tools.

14. Prohibiting handshaking and other unnecessary person to person contact in the workplace 15. Placing notices that encourage hand hygiene at the entrance of the workplace and in other workplace areas where they are likely to be seen.

16. Suspending the use of personal identification number (PIN) pads, PIN entry devices, electronic signature capture and any other credit card receipt signature requirements to the extent that it is permitted by agreements with credit card companies and credit agencies.


Treatment of Employees Not Deemed Essential Critical Infrastructure Workforce. All other departments and employees not deemed essential critical infrastructure workforce by the Department of Homeland in its guidance dated March 19, 2020 and revised on March 28, 2020 are subject to 20 requirements:

1. Screening and evaluating workers exhibiting signs of illness such as cough, shortness of breath and fever over 100.4 degrees.

2. Requiring workers exhibiting signs of illness to not report to work or to seek medical attention.

3. Enhancing sanitation of the workplace.

4. Requiring hand washing or sanitation by employees at appropriate places at the work location.

5. Providing personal protective equipment (PPE) as available and as appropriate to the function and location of the employee. COVID-19 Information Released: 4/2/20 5

6. Prohibiting employees to gather in groups during work hours.

7. Permitting employees to take breaks and meals outside, in their office or personal workspace or in other areas where at least six feet of space may be maintained.

8. Implementing teleworking for all employees when possible.

9. Implementing staggered shifts for all employees when possible.

10. Holding all meetings and conferences virtually, when possible.

11. Delivering intangible services remotely when possible.

12. Discouraging employees from using another employee’s phone, desk, office, work tools or equipment.

13. Prohibiting handshaking and other unnecessary person to person contact in the workplace

14. Placing notices that encourage hand hygiene at the entrance of the workplace and in other workplace areas where they are likely to be seen.

15. Suspending the use of personal identification number (PIN) pads, PIN entry devices, electronic signature capture and any other credit card receipt signature requirements to the extent that it is permitted by agreements with credit card companies and credit agencies.

16. Enforcing social distancing of non-cohabitating persons while present on the local government’s leased or owned property.

17. Providing alternative points of contact to provide services, such as outside of the building.

18. Increasing physical distance between employees and “customers.”

19. Increasing the physical space between workers’ worksites to at least six feet.

20. Providing disinfectant and sanitation products for employees to clean their workspace, equipment and tools.

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