Things are moving fairly quickly at both the state and federal levels – state shutdown orders are very fluid, and often are enacted with little thought of definition – something that tends to then come in fits and spurts in the following weeks.

It may help to know that, generally speaking, there are three shutdown structures being used – those that define “essential businesses”, those that address “essential critical infrastructure”, and those that refer to “life-sustaining businesses”. In some jurisdictions there are references to more than one of these categories. Some jurisdictions also refer to the 16-sector listing of “essential critical infrastructure workers” put out by the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency or “CISA”.

The point being that in most (but not all) of these, there is language that exempts certain businesses from the shutdown order, and this exemption often looks like this:

. . service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.

At first blush many are hard pressed to argue remodeling contractors would be considered to be providing services necessary to maintaining the safety, sanitation, and essential operation of a house. Of course, we know that backup generators, roofing repair and HVAC work can often be considered to be of a more “emergency” or “essential” need – and that is also why a rescission waiver can often be used by such clients.

But in various situations, depending on the products in question, shouldn’t many home improvers be able to argue in good faith that they fall under this type of exemption? Is not clean water, secure windows, a functioning bathroom and a working kitchen necessary to the safety and essential operation of a home? In many areas can we not make a reasonable argument that the lack of a functioning gutter system creates a risk of flood, mold, mildew and roof damage? And if these arguments are incorrect or too aggressive, is it not the responsibility of the state Governor in question to provide further detail and clarification in this area so a small business knows what the right thing to do actually is?

BLLP is of the belief that in almost all jurisdictions the vast majority of our clients are able to make a reasonable argument they should remain open, so long as they maximize telecommuting and work-at-home staff as much as possible and always adhere to social distancing requirements.

Nevertheless, be careful how aggressive you are in these difficult times. Perhaps installing windows is essential to the safety and operation of a home, and by extension so is responding to a lead where a consumer is needing to buy new windows. But is canvassing really directly related to maintaining the essential operation of a residence?

Be smart – aggressive contractors are already causing a backlash resulting in a tightening on some of the definitions allowing businesses – especially contractors and remodelers – to stay open. For example, recently both the New York State Department of Economic Development and the Michigan Governor issued guidance that appears to narrow the essential business exemption for contractors, although at this juncture it appears most major remodeling projects should be able to continue uninterrupted in those states.

But be aware that this narrowing is likely to continue, and police presence has increased in a number of areas, including Dallas and Pennsylvania – with clients being cited and issued private closing orders. Nevada has already banned door-to-door solicitations, and Pennsylvania has shut down direct selling operations. A few things to consider:

• Have a “street letter” from your law firm, posted on your front door and ready to be handed out, confirming your “open” status under the state’s shutdown order.
• Place a COVID-19 skin on your web page to show how and why you are open and taking care of your customers.
• Upgrade your telephone message, such as:

Thank you for calling Green Coconut Construction. We are open and committed to helping our customers with their service and installations. We are following all CDC recommendations and best practices in regard to Covid-19. Our number one concern during this time is the health of our employees and our customers. Our representatives, technicians and installers are washing hands frequently, cleaning our equipment multiple times each day, and are equipped with ample hand sanitizers. We have implemented social-distancing protocols, and are refraining from shaking hands while we maintain a respectful distance. We have asked all employees with any symptoms of a cold or flu to stay home. Upon completion of any work, our installers will thoroughly disinfect the work area before leaving your home.