COVID-19 continues to rage on after months of impacting our lives, businesses, and the economy. Ohio, at one point a beacon of the country’s COVID-19 response, has recently set state records for new daily cases, hospitalizations, and, sadly, deaths. In response to the increased number of cases in Ohio, last week, Governor DeWine announced a new set of COVID regulations and created a new investigative task force designed to curtail the spread of COVID-19. These new regulations will impact businesses immediately.
The RestartOhio Regulations
In April, Governor DeWine, through the Ohio Department of Health (“ODH”), promulgated the “RestartOhio Regulations,” which aimed to limit the spread of COVID-19 as Ohio reopened. We wrote about the RestartOhio Regulations and their predicted impact on Ohio businesses here. As we believed, restaurants and bars suffered from citations, fines, and government intervention from the Ohio Investigative Unit (“OIU”), a unit tasked with enforcing the RestartOhio Regulations. To date, the lion’s share of enforcement appears to have been directed at restaurants and bars; however, the Governor’s recent order appears designed to expand enforcement to other retail establishments while further tightening restrictions on the restaurant industry.
Ohio’s Revised Orders
On November 11, 2020, Governor DeWine reupped regulatory oversight of businesses, retail establishments, and bars and restaurants and announced two revised orders. The first revised order governs the use of masks. The existing July 23, 2020 mask order required individuals to wear masks indoor non-residential buildings, outdoors when unable to maintain a six-foot distance from others, or while waiting for or riding public transportation. The mask order did not apply to those younger than ten years, those for which it would not be medically safe to wear a mask, individuals who are communicating with the hearing impaired, those who are alone in an enclosed non-residential space, those actively engaged in exercise, and various other exceptions.
The revised mask order leaves in place the requirements from the first order and further requires each retail establishment to post a sign that requires face-covering upon entry. Each store is additionally tasked with ensuring that each customer and employee complies with the mask order. By the terms of Governor DeWine’s announcement, a well-meaning business who fails to ensure just one customer is wearing a mask would be in violation of the order.
The second revised order relates to Ohio’s social gathering order. The existing April social gathering order, with certain exceptions, prohibited congregating in groups of ten or more individuals. The revised social gathering order, in contrast, places greater restrictions on “open congregational areas,” including outdoor dining areas. Under the newly-issued order, patrons must remain seated and masked unless they are actively consuming food or drinks. Patrons may not dance at outdoor dancing areas or meander about while dining. This order will impact bars and restaurants most directly, and Governor DeWine left open the question of whether bars and restaurants will be permitted to remain open at all. Governor DeWine indicated an announcement with respect to whether bars and restaurants will be shut down will come by November 19, 2020.
Implications for Businesses Being Investigated
Governor DeWine created an investigative team to enforce these revised orders. The Retail Compliance Unit, or “RCU,” is comprised of agents led by the Ohio Bureau of Workers’ Compensation. The RCU is empowered to audit businesses for compliance with the revised orders. A business’s first violation of a revised order as cited by the RCU will result in a written warning. A second violation will result in the closure of the business for up to 24 hours. While little is known about the RCU because it was just created last week, businesses should be aware that undercover officers are a potential source of government investigation. Just like the OIU, an RCU agent could walk into a business, examine it for non-compliance, and leave without a trace.
It appears certain that enforcement of the RestartOhio Regulations will increase after Governor’s DeWine’s announcement, and the most important takeaway for businesses is that the new orders put the onus on the business to know and enforce these new rules so that they can ensure compliance, regardless of a patron’s proclivity for mask use. Therefore, businesses should instruct their employees on these new rules, train their employees to remain vigilant to ensure its patrons wear face coverings, and instruct them how to appropriately address uncooperative customers. If they have not already, Ohio businesses should adopt the standards set out in the RestartOhio Regulations and the revised orders. Failure to adopt appropriate safety precautions could result in the business being fined or closed.