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IDAHO’S ORDER TO SELF-ISOLATE: WHAT IT MEANS FOR YOU AND YOUR BUSINESS
March 30, 2020


All articles in this COVID-19 Response Resource issue are effective as of March 30, 2020.

On March 25, 2020, a state-wide Order to Self-Isolate for the State of Idaho (“Stay-Home Order” or “Order”)) was issued by Brad Little, Governor of Idaho, in an effort to slow the spread of COVID-19. The Order will continue to be in effect until 11:59 p.m. on April 15, 2020, or until it is extended, rescinded, superseded or amended.[1] Under the Order, “all individuals currently living within the State of Idaho are ordered to self-isolate at their place of residence.” Idaho’s Stay-Home Order is far from the kind of total lockdown that has been seen in some countries and jurisdictions. Individuals and businesses operating in Idaho should be familiar with the many exemptions related to “essential” personal and business activities as well as the application process for businesses that wish to be added to the list of exempt businesses.[2]

Exemptions For Personal Essential Activities

The Stay-Home Order broadly prohibits all public and private gatherings and multi-person activities for social, spiritual and recreational purposes, regardless of the number of people involved (including, for example, planned weddings). However, Section 8.a provides several exemptions, allowing individuals to leave their residence to perform certain “Essential Activities”:

  • Activities and tasks essential to their health and safety, or to the health and safety of their family or household members (including pets) or livestock
  • Obtaining necessary services or supplies for themselves and their family or household members, or to deliver those services or supplies to others
  • Engaging in outdoor activity[3]
  • Providing essential products and services at an “Essential Business”
  • To care for a family member or pet in another household

Exemptions for Essential Services and Businesses

Under Idaho’s Stay-Home Order, non-essential businesses must “cease all activities at facilities located within the state except Minimum Basic Operations.” (Order, Section 5.) Thus, even non-essential businesses are permitted to carry out “minimum basic operations” at their facilities, defined as “the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions” and “to facilitate employees of the business being able to continue to work remotely from their residences.” (Order, Section 8.g.)

Section 8.f. sets forth the categories of “Essential Businesses” that are currently exempt. Not only are Essential Businesses exempt, but “all Essential Businesses are strongly encouraged to remain open.” (Order, Section 5.) The categories of Essential Businesses include:

  • Healthcare Operations (defined more thoroughly in Section 8.b to include hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers or any related and/or ancillary healthcare services);
  • Essential Infrastructure (defined more thoroughly in Section 8.c to include public works construction, commercial construction and the transfer and selling thereof, construction of housing and the transfer and selling thereof, airport operations, water, sewer, gas electrical, oil refining, mining, roads and highways, public transportation, solid waste collection and removal, internet and telecommunications systems);
  • Essential government services including services and programs offered by the Department of Health and Welfare
  • Grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh meats, fish and poultry, liquor, beer and wine and any other household consumer products
  • Food cultivation and production, including farming, livestock, fishing and food processing
  • Businesses that provide food, shelter and social services and other necessities of life for economically disadvantaged or otherwise needy individuals
  • Newspapers, television, radio and other media services
  • Gas stations and auto-supply, auto-repair and related facilities
  • Banks, credit unions, financial institutions, insurance companies and services related to financial markets
  • Hardware stores and firearms businesses
  • Plumbers, electricians, exterminators, landscapers and other service providers who provide services that are necessary to maintaining the safety, sanitation and essential operation of residences, Essential Activities and Essential Businesses
  • Businesses providing mailing and shipping services
  • Educational institutions for purposes of facilitating distance learning or performing essential functions
  • Laundromats, dry cleaners and laundry service providers
  • Restaurants and other facilities that prepare and serve food, but only for delivery or carry out (including schools and other entities that typically provide free food services to students or members of the public)
  • Hotels, motels, shared rental units and similar facilities for purposes of housing, or to quarantine, those individuals exempted under Section 8
  • Businesses that supply products needed for people to work from home
  • Businesses that supply other Essential Businesses or Essential Government Functions with the support or supplies necessary to operate
  • Businesses that ship or deliver groceries, food, goods or services directly to residences
  • Airlines, taxis and other private transportation providers providing transportation services necessary for Essential Activities and other purposes expressly authorized in this Order
  • Home-based care for seniors, adults or children
  • Residential facilities and shelters for seniors, adults and children
  • Essential tribal operations
  • All operations at or related to the Idaho National Laboratory
  • Professional service, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities
  • Childcare facilities providing services that enable employees exempted in this Order to work as permitted

Additionally, the Stay-Home Order specifically incorporates by reference CISA Guidance issued by the Cybersecurity and Infrastructures Security Agency of the Unites States Homeland Security on March 19, 2020, (“CISA Guidance”) which includes a list of “Essential Critical Infrastructure Workers.” For example, the Governor’s Office clarified in its “additional guidance” memorandum that logging, forestry, wood products manufacturing and paper manufacturing businesses are considered essential infrastructure and allowed to continue operations, specifically referencing the CISA Guidance. If any provisions in the Stay-Home Order conflict with any of the guidance in the CISA Guidance, the provisions of the Stay-Home Order control.

Businesses that are not considered to be an Essential Business under the Stay-Home Order can apply to have their business exempted. Any business seeking such an exemption must call the Idaho Department of Health and Welfare at its toll-free number 1-888-330-3010, Monday through Friday, 8:00 a.m. to 6:00 p.m. in order to complete an application over the phone. As of March 30, 2020, such applications are not available online and must be completed by calling the above phone number.

Enforcement

The Stay-Home Order contains little detail regarding enforcement. In Section 9, the Order “requests” that the Sheriff, the Chiefs of Police and the Idaho State Police “ensure compliance with and enforce this Order.” But the Order is otherwise silent regarding how such enforcement will be carried out. It does not require individuals to carry forms explaining why they have left the house, and it does not provide a mechanism or process that businesses are required to follow in order to prove that they are an Essential Business or otherwise in compliance with the Order. The Governor’s Office expressly clarified that “officers are not asking or looking for any type of special paperwork from employers” and that “there is no special documentation needed for people going to work or permitted actives [sic].”

Nevertheless, individuals and businesses should take all necessary steps to comply with the Order. The Order provides that violation of any provision of the Order “constitutes an imminent threat to public health.” Under Idaho Code § 56-1003(7)(c), “[a]ny person who violates an order of isolation or quarantine shall be guilty of a misdemeanor.” A misdemeanor is punishable by imprisonment not exceeding six (6) months, by a fine not exceeding $1,000.00, or by both. See Idaho Code §18-113.

For more information about this or other related matters, contact Andrew Alder at (208) 562-4879 or send an email to aalder@parsonsbehle.com.

 

[1] The Stay-Home Order was issued by the Director of the Idaho Department of Health and Welfare under Idaho Code §56-1003(7), which gives the Director “power to impose and enforce orders of isolation and quarantine to protect the public from the spread of infectious or communicable diseases….”

[2] The Order requires that individuals and businesses engaging in exempt activities must nevertheless comply with social distancing requirements. “Social Distancing Requirements” is defined in Section 8.j of the order and includes “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes, regularly cleaning high-touch surfaces, and not shaking hands.”

[3] The exemption for outdoor activities has prompted questions regarding the operation of certain outdoor businesses such as golf courses. The State issued an “additional guidance” memorandum which specified that golf is an outdoor activity permitted by the Order provided that golf courses and golfers follow certain recommendations, including that the clubhouse, restaurant, and bar remain closed.