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Opinion: How Stay Home Missouri order interplays with city, county

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The Stay Home Missouri order announced by Gov. Mike Parson on April 3 appears designed to damage the economy as little as possible while also combating the spread of COVID-19.

Unlike most city and county stay-at-home orders that limit nonessential business activity to minimum necessary activities, the Missouri order, effective April 6-24, does not prohibit nonessential businesses from continuing to operate. Rather, Stay Home Missouri places social gathering (no more than 10 people at a time in a single space) and social distancing (a minimum 6-foot distance between people) limitations on all nonessential business activity. As discussed below, in order to combat overcrowding at grocery stores and other necessary retail establishments, Stay Home Missouri also places significant gathering and social distancing limitations upon essential retail business establishments that are more restrictive than most city and county orders.

All businesses allowed to operate within cities and counties in Missouri may continue to conduct business so long as they comply with the social gathering and social distancing limitations set out in Stay Home Missouri. Not all business activities deemed essential by a city or county stay-at-home order are considered essential for purposes of creating an exception to the social gathering and social distancing guidelines in the state order.

The determination of whether an activity is exempt from the social gathering and social distancing limitations involves a detailed analysis of whether the activity is deemed essential by guidelines published by the U.S. Department of Homeland Security Cyber and Infrastructure Security Agency. For example, while most area city and county orders designate construction as essential activity, the CISA guidelines are much more restrictive and require the construction activity to support another designated essential activity before it is deemed essential. Construction industry participants should know that, subject to local governing body restrictions on your business activity, you can continue to conduct business under the new order in Missouri so long as you maintain social gathering and social distancing requirements as set out in the Stay Home Missouri order. Best practice involves strict compliance with social gathering and social distancing restrictions.

Stay Home Missouri requires all businesses involving retail sales to the public, including essential business activity (e.g. grocery, convenience, liquor, mobile phone, home improvement and gun sales) to limit the number of individuals in any retail location to: (1) 25% of fire or building code occupancy load for facilities under 10,000 square feet, and (2) 10% of the occupancy load for facilities 10,000 square feet or larger. [Editor’s note: Officials with the city of Springfield and Greene County amended their order April 6 to match the state’s policy on retail operations.]

Nonessential businesses as defined by local city or county orders are still limited to minimum necessary activities as defined by those orders. Nonessential business activity outside of cities and counties with stay-at-home orders in Missouri may continue so long as they meet social gathering and social distancing requirements in Stay Home Missouri.

Nonessential businesses may request a waiver from the Department of Economic Development to exceed the 10-person group limit. Stay Home Missouri allows local authorities to have stay-at-home orders in place, provided those local orders are not inconsistent with the Stay Home Missouri Order. If a local authority’s stay-at-home order contains provisions that are more restrictive than the state’s order, it is reasonable for the business to assume the more restrictive provision applies.

Michael Textor is a partner at the law firm Kutak Rock LLP, general counsel to Springfield Contractors Association and 2020 president of Construction Lawyers Society of America. He can be reached at michael.textor@kutakrock.com.

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