What does it mean to shelter-in-place? A National Review.
by Meredith D. Crawford
Many of us are learning new terms as we adjust to the threat of the COVID-19 pandemic. In Florida, we are familiar with one of the latest terms — “shelter-in-place” in the context of a hurricane. But how does that apply to a pandemic with no clear landfall cone? Our attorneys sat down to find out; here is their insight.
To “shelter-in-place” means to find a safe place indoors during a disaster and stay there until you are given the “all clear” or told to evacuate. It is a directive to take refuge from a hazard in the place one occupies. Although many Americans are familiar with the concept of sheltering-in-place in response to hurricanes, severe weather and active shooter situations, citizens and governments, facing the worldwide health pandemic of COVID-19, are grappling with a new set of questions and concerns related to sheltering-in-place.
The Center for Disease Control and Prevention (“CDC”) defines the Coronavirus disease 2019 (COVID-19) as a respiratory illness that can spread from person to person. The virus is thought to spread mainly between people who are in close contact with one another (within about 6 feet) through respiratory droplets produced when an infected person coughs or sneezes. It also may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. COVID-19 is known to result in severe complications with patients suffering from pneumonia in both lungs, multi-organ failure and in some cases death.
In response to COVID-19, officials throughout the United States are ordering people to “shelter-in-place” and stay in their homes while allowing people to venture out to meet essential needs. In some cases, outdoor activities like hiking and biking in public spaces and parks are allowed. People who work in critical services are usually excluded from mandates to shelter-in-place as their work is essential to maintaining order – these may include workers in healthcare and law enforcement, government functions, grocery stores, gas stations, banks and pharmacies. 
As defined by USA Patriot Act of 2001 (42 U.S.C. 5195c(e)), critical infrastructure includes any “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” This definition is broad and includes a range of stakeholders who either directly or indirectly enable the viability of critical infrastructure systems. During an emergency, resource constraints arise because resources typically used for one societal function must be otherwise employed to support different emergency response tasks.
While the federal government has identified critical categories of infrastructure during the COVID-19 outbreak which include energy, water and wastewater, transportation, dams, critical manufacturing, communications, and food and agriculture, it is presently left to the state and local government to determine for itself how to ensure that this critical infrastructure, and thereby the population, is protected and to identify other essential needs. The US Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA), issued a memorandum identifying 16 sectors considered to be “essential” as part of the National Infrastructure Protection Plan (NIPP). The list includes “workers who conduct a range of operations and services that are essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing management functions, among others. The industries they support represent, but are not necessarily limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement, and public works.” The CISA makes clear that its guidance is advisory for state and local governments. “It is not, nor should it be considered to be, a federal directive or standard in and of itself.” The CISA advises that it is offering this list to assist prioritizing activities related to continuity of operations and incident response, including the appropriate movement of critical infrastructure workers within and between jurisdictions.”
Across the country, shelter-in-place orders vary and have not been defined restrictively. Some states have issued mandatory statewide stay-at-home orders, while other states have left the decision up to local officials. An order to shelter by the Navaho Nation encompasses multiple states – see # 3 (AZ below). There are shelter-in-place directives that contain expiration dates, and others are indefinite. Some jurisdictions have imposed curfews, utilized roadblocks, ordered non-residents to leave, created civil or criminal penalties for violations and taken similar measures. Other locations have not issued any order to shelter. There is no federal mandate to create uniformity in the COVID-19 response. A sampling of orders to “shelter-in-place” is helpful to demonstrate the differences in jurisdictional approaches to combat COVID-19. The individual orders are reflective of the fundamental values and culture of each State.
- Alabama. The Alabama Department of Public Health has issued recommendations regarding public gatherings. There is no statewide order to shelter-in-place. However, mayors of Auburn and Opelika asked residents to shelter in place starting March 22. Residents of those two cities should only leave their homes for essential activities, like buying groceries or seeking medical care and “should not host gatherings of people outside of your immediate family.” 
- Alaska. The city of Anchorage issued an emergency order directing its residents to “hunker down.” The order went into effect March 22 at 10pm and mandates that non-essential businesses cease operations and that residents only leave their homes to obtain food, medical care, or “to get fresh air without contacting others.” Essential businesses include marijuana dispensaries and childcare facilities to be used only by those who need childcare to work an essential job.
- Arizona. The Navajo Nation ordered all residents to shelter in place beginning March 20. The bulk of the Navajo Nation’s territories are located in Arizona, but the order also applies to Navajo land in Utah, Colorado, and New Mexico. “Navajo Nation citizens are required to stay home and undertake only those outings absolutely necessary for their health, safety, or welfare.” This Order also has one of the most clearly defined list of businesses considered “essential” and therefore exempt from sheltering-in-place.
- California. On March 19, Governor Gavin Newsom ordered all 40 million Californians to shelter in place until further notice. The order is legally enforceable, and violations can result in a misdemeanor with up to six months imprisonment or $1,000.
- Colorado. A shelter in place order issued by authorities in Colorado’s San Miguel County took effect March 18 and will last until at least April 3. The area contains five towns, including Telluride. All events and gatherings of 10 people or more are prohibited, and bars, taverns, and restaurants are closed. All nonresidents and other visitors to San Miguel County were ordered to leave the area and return to their homes, and all hotels, motels, and short-term rentals had to cease operations.
- Connecticut. Governor Ned Lamont issued a shelter in place order for all 3.5 million Connecticut residents beginning March 23 at 8pm.
- Delaware. Governor John Carney ordered all Delaware residents to shelter in place beginning March 24 at 8am. The order will be in effect until May 15 or “until the public health threat is eliminated,” the governor’s office said.
- Florida. Following a White House Task Force conference call on March 23, 2020 with Governors, Governor Ron DeSantis declared that he will not be issuing a State-wide shelter-in-place order calling it a “blunt instrument.” He has, however, ordered that all airline passengers coming to Florida from New York and New Jersey must self-quarantine for 14 days. The governor advised that a shelter-in-place order would cost hundreds of thousands of jobs and said the virus was “not impacting every corner of the state.” DeSantis declared that a “governor is not going to start imprisoning people just because they left their houses.” 
- Georgia. Commissioners in Athens-Clarke County, home to the University of Georgia, issued a shelter in place order on March 19. The order is effective until April 7 but could be extended. Travel on foot, bicycle, scooter, motorcycle, automobile, or public transit unrelated to an essential business activity or need is also prohibited. Similar shelter in place orders have been issued in Dougherty County and Covington, Georgia. In Covington, city officials also implemented a curfew from 9pm to 5am beginning March 20, and prohibited gatherings of more than 10 people.
- Hawaii. Honolulu Mayor Kirk Caldwell and Maui Mayor Michael Victorino ordered residents to stay in their homes if they are not essential workers. All visitors to the islands must stay in their homes or hotel rooms as much as possible. People are prohibited from visiting Waikiki Beach, and those found on the shoreline will face a fine of up to $5,000 and up to a year in jail.
- Idaho. On March 17, local officials in Blaine County issued a shelter in place order for all residents. The order will remain in effect for residents until April 6, unless it is dismissed or extended. The county says that individuals may go to grocery stores and gas stations, pick up food to go from restaurants, and recreate outside so long as they follow social distancing. It also orders all business activities to be conducted from home and virtually as much as possible.
- Illinois. Governor J. B. Pritzker ordered all Illinois residents to shelter in place beginning March 21 at 5 pm. Under the order, which will be in effect until at least April 7, residents can only leave their homes to go to grocery stores, pharmacies, or gas stations, and to take walks outside, so long as they follow social distance measures. 
- Iowa. Mayor Frank Cownie asked all residents of Des Moines, Iowa to voluntarily shelter in place starting March 21. The governor of Iowa has said that a shelter-in-place order is not needed.
- Kentucky. Governor Andy Beshear ordered all residents of Kentucky to effectively shelter in place. Kentucky residents may leave their homes to obtain food, healthcare, and work at businesses that the state has deemed essential, to include liquor stores. All non-essential businesses must close. The order goes into effect 8pm March 23.
- Louisiana. On March 22, Governor John Edwards directed all Louisiana residents to shelter in place and limit their movements. Gathering in groups is prohibited until at least April 13, when the state will review the order. 
- Maine. The OceanView retirement community in Falmouth, Maine ordered residents to shelter in place, and a roadblock has been put in place to stop people from entering the community.
- Maryland. Governor Larry Hogan has ordered all non-essential businesses to close starting at 5pm March 23. However, Maryland made it clear that this is not a shelter-in-place order.
- Massachusetts. Residents of Nantucket and Provincetown must shelter in place as of March 23. Governor Charlie Baker ordered all non-essential businesses and organizations in the state to close for at least two weeks beginning March 23. Baker said he would not issue a shelter in place order, but the order severely limits the movements of all Massachusetts residents. Gatherings of more than 10 people are prohibited in most places, and “athletic and recreational activities that bring participants into close physical contact”—like basketball or football—are also banned, even if they involve fewer than 10 people. 
- Michigan. Governor Gretchen Whitmer ordered all Michigan residents to shelter in place beginning March 24. 
- Mississippi. Mayor Jason Shelton of Tupelo ordered residents of the northeastern Mississippi city to shelter in place and cease all non-essential business operations. Utility disconnections, evictions, and foreclosures will also be suspended. 
- Missouri. Officials ordered all residents of Kansas City, Missouri and surrounding Johnson, Jackson and Wyandotte counties to shelter in place beginning March 24. Weddings, funerals, wakes, and all other “non-essential business and other non-essential operations must cease.” Childcare facilities can continue operating so long as they serve no more than 10 children at a time. 
- New Jersey. Governor Phil Murphy ordered all 9 million New Jersey residents to shelter-in-place beginning 9pm March 21. Employees who must report to work during this time are encouraged to obtain a letter from their employer noting they work in an “industry permitted to continue operations.”
- New York. On March 20, Governor Andrew Cuomo issued a wide-ranging and detailed shelter in place order. Beginning March 22 at 8 pm, all New York state residents are ordered to stay at home as much as possible. People who are 70 or older, or immunocompromised, are not permitted to visit households with multiple people, must wear a mask when in the company of others, prescreen visitors and aides by taking their temperature, stay 6 or more feet away from other people, and stay away from public transit unless it is an emergency. Healthy people under 70 should leave their homes only to get groceries and medicine, but are permitted to exercise and walk outside so long as they remain 6 or more feet away from others at all times. Non-essential businesses must close. There will be a civil fine and mandatory closure for any business that is not in compliance.
- Ohio. Governor Mike DeWine ordered all Ohio residents to shelter in place beginning March 24. In a press conference, DeWine said Ohioans would only be permitted to leave their homes to obtain food, medical care, and to exercise or walk pets. Daycares will not be able to operate unless they obtain a special “pandemic” license.
- Pennsylvania. Mayor Jim Kenney ordered all residents of Philadelphia to shelter in place beginning 8am March 23. Starting March 23, Governor Tom Wolf ordered all non “life-sustaining” businesses in the state to shut down.
- Tennessee. The Metro Public Health Department ordered all residents of Nashville and Davidson County to stay in their homes and limit movement outside to “what is absolutely necessary” on March 22.
- Texas. Dallas County, McLennan County, and the city of Waco issued shelter in place orders beginning March 23 after Governor Greg Abbott welcomed local officials to do so. The state did not impose a shelter-in-place order and moved to expand hospital capacity. 
- West Virginia. Governor Jim Justice ordered all West Virginia residents to shelter in place beginning 8pm March 24.
- Wisconsin. On March 23, Governor Tony Evers ordered all Wisconsin residents to shelter in place through a “safer at home” order.
COVID-19 is unlike any emergency in modern American history. The balance between protecting the public health and protecting the public economy is a hard one to strike. Given the differences between the way state and local governments are addressing the crisis, some states’ and cities’ employees and industries may feel the impact financially, while others may face greater health risks. Only time will tell.
Recognizing that the COVID-19 response is changing as more information becomes available, and that cities, states and local governments are reacting individually, it is important to ensure that everyone remains aware of the emergency rules within the respective jurisdiction. While there are differences in the specific regulations imposed, ranging from daycare pandemic licenses, letters from employers, curfews and roadblocks, some constants remain. The CDC recommends creating a household plan to include maintaining a 2-week supply of prescription and over-the-counter medications, food and other essentials, and it encourages establishing ways to communicate with others and ensuring that you stay informed about emergency plans and directives. All levels of government are encouraging the public to wash their hands, avoid touching their face and avoid close contact with people who are or may be infected with COVID-19 and take general health and hygiene precautions.
Whether by government mandate with corresponding civil or criminal penalties or through simple encouragement, sheltering-in-place means exactly what it sounds like. When asked to “shelter-in-place,” it is important to take heed, “get inside, find a safe spot and stay put.” After all, the virus which causes COVID-19 does not recognize and will not stop because of jurisdictional boundaries or give any regard to the nuances between government regulations. We should work together, using common sense and kindness, and when possible, stay home. If you must venture out, stay vigilant and take care of yourself and each other.
If you or your business has questions about this or other City and Local Government legal questions, please contact the author, Meredith Crawford, at 850-434-9200 or firstname.lastname@example.org.
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