In response to the escalating COVID-19 crisis, Governor Roy Cooper issued Executive Order 121 imposing a series of statewide restrictions, prohibitions, and directives referred to as a Stay-at-Home Order (“EO121” or “the Order”).  The Order goes into effect on Monday, March 30, 2020 at 5:00 p.m. and remains in effect for 30 days until April 29, 2020 unless rescinded, revised, or extended.  While the Governor has urged voluntary compliance with EO121, the Order is nonetheless mandatory, and violations are punishable as a Class 2 misdemeanor.  To read EO121, click here.  For FAQs and guidance on EO121, click here.

A number of counties and cities in our state have already imposed local restrictions, including “stay-at-home,” under their local state of emergency declarations (for more discussion of “stay-at-home” restrictions imposed by counties and cities, see this blog post).  Does EO121 override or nullify local restrictions and prohibitions already in place?  Does EO121 prevent counties and cities from imposing more restrictive measures in the future?  This blog discusses the effect EO121 has – and doesn’t have – on local restrictions already imposed and those which might be imposed by county and city officials as they continue to deal with COVID-19 at the local level. 

Summary of EO121 Stay-at-Home Order

In brief, EO121 does the following:

• Directs all people in the state to stay in their homes, places of residence, or current places of abode except for essential activities, essential governmental operations, or to participate in or access COVID-19 essential businesses and operations (defined in the Order). This applies to all residents of the state as well as visitors who are currently staying in the state. While persons experiencing homelessness are exempt from these restrictions, they are encouraged to shelter in a location that meets social distancing requirements.  Persons who are unsafe or become unsafe in their homes are permitted, indeed urged, to leave and stay in a safe location.
• Orders all non-essential businesses to close and authorizes COVID-19 essential businesses and operations to remain open (COVID-19 essential businesses and operations are defined in the Order). Non-essential businesses which must close are still permitted to continue basic minimum operations (as defined in the Order).  Businesses and not-for-profits deemed essential in the Order do not require documentation from the State to continue operating.  Employees of essential businesses are not required to have documentation from the State to report to work.  Businesses not deemed essential in the Order that wish to be considered so may apply to the NC Department of Revenue.  For information on city and county authority to provide emergency loans to businesses affected by the crisis, see blog posts here and here.)
• Lowers the mass gathering ban to no more than 10 people (down from the 50 person limit imposed under EO120; funerals are still permitted to include up to 50 people).
• Previous Executive Orders closing public schools, restricting in-person dining at restaurants, and closing bars and other businesses identified in those Orders remain in effect.
• Finally, the Order directs all persons and entities to comply with social distancing requirements, including maintaining at least 6 feet distancing from others, washing hands with soap and water for at least 20 seconds or using hand sanitizer as frequently as possible, regularly cleaning high-touch surfaces, and facilitating online or remote access by customers and employees if possible.

Some provisions of EO121 are specifically directed toward governmental functions.  The Order:

• Specifically includes healthcare, public health operations, and human services operations among the list of essential business operations. For local governments, this applies to agencies and their employees providing these services such as public health departments, DSS, and local management entities/managed care organizations (LME/MCO).
• Permits essential governmental operations to continue. Essential governmental operations are defined as all services “needed to ensure the continuing operation of the government agencies or to provide for or support the health, safety, and welfare of the public, and including contractors performing essential governmental operations.”  The Order directs governmental bodies to determine what services are considered essential governmental operations for their own jurisdictions and identify those employees or contractors who are necessary to perform these operations. While each local government will be able to decide for itself which of its departments and employees are essential and therefore may remain open, EO121 exempts certain categories of government workers from the Order and require certain government services and operations to continue (see the next two bullets).
• Specifically exempts the following categories of government workers from the Order: “all first responders, emergency management personnel, emergency dispatchers, legislators, judges, court personnel, jurors and grand jurors, law enforcement and corrections personnel, hazardous materials responders, child protection and child welfare personnel, housing and shelter personnel, military, and other governmental employees working for or to support COVID-19 Essential Businesses and Operations.”
• Restates the previous directive that local government agencies and officials responsible for functions and services required under state and federal law must continue to exercise their legal responsibilities in carrying out these functions or providing these services (see Section 2 of EO120).

Effect on County and City Emergency Restrictions and Prohibitions

Does EO121 override or nullify restrictions and prohibitions already imposed under local state of emergency declarations?  Does the Order restrict the authority of county and city officials to impose additional restrictions or prohibitions during the COVID-19 emergency?  The answer to both questions is “no” for those local restrictions or prohibitions which are more stringent than those imposed by the Governor.

The authorities granted to counties and cities to impose restrictions and prohibitions under a locally declared state of emergency are independent from that of the Governor (G.S. 166A-19.30 for gubernatorial authorities; G.S. 166A-19.31 for counties and cities).  While the Governor may “amend or rescind any prohibitions and restrictions imposed by local authorities” when “the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it” (G.S. 166A-19.30(c)), EO121 specifically did not invoke this gubernatorial power.  To the contrary, Section 4 of the Order makes clear the Governor is not taking this action:

The undersigned recognizes that the impact of COVID-19 has been and will likely continue to be different in different parts of North Carolina.  Urban areas have seen more rapid and significant spread than most rural areas of the state.  As such, the undersigned acknowledges that counties and cities may deem it necessary to adopt ordinances and issue state of emergency declarations which impose restrictions or prohibitions to the extent authorized under North Carolina law, such as on the activity of people and businesses, to a greater degree than in this Executive Order.  To that end, nothing herein is intended to limit or prohibit counties and cities in North Carolina from enacting ordinances and issuing state of emergency declarations which impose greater restrictions or prohibitions to the extent authorized under North Carolina law. (emphasis added)

Thus, if a county or city has already imposed local restrictions or prohibitions which are more stringent than those of EO121, those stricter local restrictions and prohibitions are still in effect and may be enforced within that jurisdiction.  Similarly, if a county or city deems it necessary in the future to impose local restrictions or prohibitions which are more stringent than those of EO121 based on conditions the local jurisdiction faces as the COVID-19 pandemic continues to evolve, those stricter local restrictions and prohibitions would be legally valid and may be enforced within that jurisdiction.

An example of a more stringent local restriction is restricting entry into the jurisdiction (such as restricting entry to residents only).  Counties and cities have the authority to restrict or prohibit “ingress and egress into the emergency area” under a local state of emergency; the emergency area may be defined as the entire geographic area of the jurisdiction. (G.S. 166A-19.31(b)(1)d.)  EO121 does not impose a blanket restriction on access into or out of the State of North Carolina (although the travel restrictions imposed under EO121 would apply equally to residents and visitors alike).  Limited entry restrictions already imposed by counties and cities remain legally valid and enforceable (assuming they are imposed with proper legal authority and are reasonably necessary to address the COVID-19 threat; for more discussion on the scope of county and city emergency authorities, see this blog).  Counties and cities that deem it necessary in the future to restrict access to their jurisdictions to further mitigate the spread of COVID-19 may still impose this restriction (with the same requirements that legal authority exists and the restriction is reasonably necessary).

Another example of local restrictions which are more stringent than those imposed under EO121 are curfews.  Counties and cities have the authority to impose curfews under a local state of emergency. (G.S. 166A-19.31(b)(1)a.)  EO121 does not impose a statewide curfew.  As with limited entry restrictions, local curfews already in effect or which might be imposed in the future are legally valid and enforceable (again, assuming the legal authority to do so exists and the curfew is reasonably necessary).

On the other hand, if a local declaration currently restricts mass gatherings to no more than 50 people, EO121 will control because it now restricts mass gatherings to no more than 10 people.

Simply put, the more restrictive measure controls.

Some Questions and Answers: EO121 and Local Emergency Restrictions

Which is more restrictive – A local “stay-at-home” declaration or EO121?

It depends.  If a county or city has already imposed (or is still considering imposing) a local “stay-at-home” declaration, its businesses, residents, and others who might be traveling within its jurisdiction are legally subject to both the local declaration and EO121.  Piecing together local restrictions with those of EO121 to determine which is more restrictive may be complicated and confusing.  For example, if a local “stay-at-home” declaration defines an essential business or essential worker more broadly than EO121, the more restrictive definitions in EO121 control.  Conversely, if the local “stay-at-home” declaration defines essential businesses more narrowly, the local declaration will control.  Even if a county or city has not imposed a full set of “stay-at-home” restrictions, other restrictions such as limited entry or curfews (see discussion above), neither of which are imposed under EO121, would still be in effect at the local level.

Is documentation of essential business or essential employee status required?

EO121 does not require documentation for proof of essential business or essential employee status.  However, if a local “stay-at-home” declaration does require documentation for compliance with its local restrictions, those documentation requirements would remain in effect for purposes of enforcing local restrictions.  EO121 directs businesses to contact the NC Department of Revenue (NCDOR) to apply for essential business status; NCDOR does not have the jurisdiction to take applications from businesses seeking essential business status as defined (or not defined) in a local declaration, nor can NCDOR interpret the meaning of these or similar terms in local declarations.  Thus, counties and cities with local “stay-at-home” declarations must continue to provide guidance on terms like essential business and essential employee for purposes of enforcing restrictions imposed under their own local declarations.

In other words, the Governor interprets and provides guidance on compliance with his Executive Orders; counties and cities interpret and provide guidance on compliance with their local declarations.

Should counties and cities keep local restrictions in place?

Whether a county or city should keep in place a local “stay-at-home” declaration (or for that matter, any other local restrictions or prohibitions) is a decision best left to that jurisdiction’s officials based on their judgment of what continues to be reasonably necessary to protect the health and safety of their communities.  Ultimately, such decisions would be acted upon by the county or city official authorized by ordinance to declare a state of emergency and impose restrictions or prohibitions under that declaration.  This author offers no opinion, nor should this blog be construed as doing so, on what those local decisions should be.  The Governor himself recognized in Section 4 of EO121 that “the impact of COVID-19 has been and will likely continue to be different in different parts of North Carolina,” and specifically preserved the authority of county and city officials to impose more restrictive measures than those of EO121 if they determine such measures are reasonably necessary to mitigate against the spread of COVID-19 and to the extent authorized under North Carolina law.

Nonetheless, should county or city officials determine the restrictions imposed under EO121 are sufficient to address the COVID-19 threat within their individual jurisdictions, they have the authority to rescind or modify their local restrictions in the same manner those local restrictions were imposed.  Doing so would in no way effect whether EO121 applies within their jurisdictions.  The Order is effective statewide regardless of any action taken – or not taken – by county and city officials.

Should county and city officials wish to reconsider their local restrictions in light of EO121, they could choose to modify their local declarations in such a way as to keep in place (or add) restrictions not already imposed under EO121 such as limited entry or curfews (see discussion above).  Again, modifying or rescinding local restrictions in no way effects the application of EO121 within that county or city.

How would a county or city modify or rescind its local emergency restrictions?

Local restrictions and prohibitions are modified and rescinded in the same manner they are imposed.  The county or city official authorized by ordinance to declare a state of emergency may take action to modify or rescind any restrictions or prohibitions previously imposed under that declaration (see this blog for more discussion of local declaration authorities).  If the ordinance does not delegate this authority to an individual official, such as the Board Chair or Mayor, such actions must be taken by the governing board itself (G.S. 166A-19.22(a)), which it can do only in a lawfully convened public meeting.  However, if the ordinance does delegate authority to an individual official, that official may act without consent of the governing board.  That official may choose to poll the board, but no action by the board itself is legally required.  Should a county or city governing board wish to amend its local ordinance to delegate this authority to its Board Chair or Mayor (assuming authority is not already delegated), the board may do so only in a lawfully convened public meeting.  There is no authority, even during a declared state of emergency, to amend a local ordinance by any other means.

Does a county or city need to take any action for EO121 to apply and be enforceable within its jurisdiction?

No.  As discussed above, the emergency authorities of the Governor under Chapter 166A are independent of those granted to counties and cities.  EO121 applies in every county and city statewide regardless of any actions (or absence of actions) taken by local officials.  There is no need for counties and cities to amend their local emergency ordinances, declare a local state of emergency, or modify an existing local state of emergency declaration for EO121 to be in effect and enforceable within their local jurisdictions.

A Final Word. . .About Words

The phrases “Stay at Home” and “Shelter in Place” have been used interchangeably throughout this event by the media, government officials, and even this author in a previous blog.  The dedicated professionals of our state’s emergency management community have educated me on the important distinction between these two terms.  “Shelter in Place” has long been understood in public safety professions to mean, literally, staying in a specified location (house, basement, interior room, etc.) for the duration of an immediate crisis such as the sudden release of chemical, biological, or radiological contaminants, or during a natural disaster when neither evacuation nor rescue is feasible (such as instructing the public to “shelter in place” during a tornado or hurricane).  “Stay at Home,” at least in the context of the current COVID-19 crisis, describes a series of measures intended to mitigate against the spread of the coronavirus but which do not require persons to, literally at all times, remain physically inside their homes for the duration of the event.  If “Shelter in Place” is ordered, that signifies a threat so grave and immediately present that persons must remain inside a safe location at all times until the threat has passed.  Although the “Stay at Home” restrictions imposed to mitigate against COVID-19 are indeed drastic measures, they are not as severe as “Shelter in Place.”  Why is this distinction important?  Should there be a need in this or any other emergency for the public to truly “Shelter in Place,” understanding the difference it is vital.  For example, one may still go to the shopping mall, play golf, or jog in the park (all with proper social distancing, of course) under the Governor’s Stay at Home Order.  One absolutely should not do any of these things during a tornado or nuclear plant meltdown.  I am grateful to our state’s emergency management community for educating me on this important distinction.  Words matter; misinterpreting them could cost lives.