Legal Bulletins

This article was updated with information regarding face masks on Friday, May 29, 2020.

In late April, Governor Larry Hogan unveiled the Maryland Strong: Roadmap to Recovery (Recovery Plan). The Recovery Plan incorporates the principles of the National Governors Association’s Roadmap to Recovery and the guidelines issued by the White House to set forth a gradual plan for reopening the state of Maryland. The commencement of the Recovery Plan, which is divided into three gradual stages (low, middle and high risk), is contingent upon the state’s ability to attain considerable progress on “Four Building Blocks”:

1. Expanded testing capacity,
2. Increased hospital surge capacity,
3. Increased supply of personal protective equipment (PPE) and
4. A robust contact tracing program.

In preparations to begin Stage One of the Roadmap, the Governor began easing some of the statewide restrictions in place when he announced on May 6, 2020, the resumption of elective medical procedures, the broadening of permitted outdoor activities and the reopening of certain outdoor recreational establishments under the stay-at-home order.

Stage One Begins

On May 13, 2020, Governor Hogan announced that, having achieved significant progress on the Four Building Blocks, effective May 15, 2020, Stage One of the Recovery Plan will begin, which includes moving from a stay-at-home order to a “Safer at Home” public health advisory.

Stage One of the Recovery Plan, as set forth in the Governor’s Amended and Restated Executive Order (Order) permits certain businesses to reopen to the public, but empowers local jurisdictions to make their own decisions on the timing of Stage One reopenings. The Order continues to prohibit social, community, recreational, leisure and sporting gatherings and events of more than 10 people at all locations and venues.

The following businesses may, subject to any local order, reopen at up to 50% of their facility’s maximum occupancy under the fire code or applicable laws, regulations and permits:

• Indoor religious facilities;
• Retail establishments, provided, however, that they continue to comply with the executive order regarding face masks and physical distancing (see Office of Legal Counsel (OLC) Interpretive Guidance COVID19-14 for a non-exhaustive list of retail establishments);
• Manufacturing businesses and facilities;
• Beauty salons, but only to provide hair services, and barber shops (collectively, Personal Services Establishments), provided, however, that
  • (i) All customers older than 2 years of age must wear face coverings as defined in and accordance with the face coverings order unless doing so would make it impossible for services to be performed,
  • (ii) All staff are required to wear face coverings in areas open to the  public and areas in which interaction with other staff is likely,
  • (iii) The Personal Service Establishments provide services on an appointment basis only, and
  • (iv) All staff must clean and disinfect the area in which each service is performed in accordance with Centers for Disease Control and Prevention (CDC) and Maryland Department of Health (MDH) guidelines.

As for outdoor recreational activities, the following establishments may open to the public:

• Golf courses and driving ranges;
• Outdoor archery and shooting ranges;
• Marinas and watercraft rental businesses;
• Campgrounds;
• Horse boarding and riding facilities; and
• Drive-in movie theaters, outdoor swimming pools, outdoor day camps and tour boats, effective as of May 29, 2020.

Furthermore, effective as of May 29, 2020, restaurants, bars and other similar establishments that sell food or beverages on-premises and social and fraternal clubs with dining facilities may, subject to any applicable local orders, operate as follows:

• Serve food and beverages to customers for consumption in outdoor seating areas; and/or
• Continue to operate on a carry-out, drive-through and delivery basis.

Food service establishments that are permitted by local order to serve customers in outdoor areas must operate in accordance with the following requirements:

• Require all staff to wear face coverings;
• Not seat more than six people together, except for members of the same household;
• Ensure patrons are seated at least 6 feet away from each other, except for households seated together;
• Not serve buffet-style; and
• Clean and disinfect every table between each seating in accordance with CDC and MDH guidelines and through the use of Environmental Protection Agency-approved cleaning products for use against COVID-19.

To the extent any prior Interpretive Guidance issued by the OLC is inconsistent with the Order, OLC Interpretive Guidance COVID19-14 has rescinded such guidance. Specifically, the following Interpretive Guidance has been rescinded: paragraph 1 of COVID19-07 prohibiting curbside pickup at non-essential businesses, COVID19-09 in its entirety, and COVID19-11 in its entirety. Businesses that are permitted to reopen under Stage One should note, however, that they must continue to comply with CDC and MDH social distancing guidelines and with all applicable orders issued by the Secretary of Health and their local jurisdictions, including those issued by local health officers. Significantly, OLC Interpretive Guidance COVID19-14 states that any local order requiring a business to close takes precedence over any OLC Interpretive Guidance that would otherwise indicate such business may be open.

The Order also permits any business to require customers and visitors (over the age of 2) and staff to wear face coverings, so long as the businesses post signs at each entrance advising of such requirement.

Individuals who knowingly and willfully violate the Order or any local order will be guilty of a misdemeanor and potentially face up to one year in prison or a fine not exceeding $5,000 or both.

Safter At Home Advisory

Although the Safer At Home advisory will not be legally enforceable, Governor Hogan has made clear that compliance is strongly recommended. Under the advisory, the governor strongly advises the following:

• Marylanders, particularly the older and more vulnerable, should to continue staying home as much as possible;
• Employers should continue to encourage telework when possible and individuals who can work from home should continue to do so;
• All Marylanders should continue wearing masks in indoor public areas, retail stores and on public transportation; and
• All Marylanders should continue practicing physical distancing, avoiding gatherings of 10 people or more, and washing their hands/sanitizing high touch areas frequently.

What Remains Closed in Stage One

All other nonessential businesses that have been required to close pursuant to prior executive orders and are not identified in this Order (i.e., senior centers, restaurants and bars, fitness centers, theaters, enclosed malls, and certain recreational and miscellaneous establishments) must remain closed until the Governor or their local representatives orders otherwise. With regard to these businesses, it appears that nothing has changed. These businesses should continue to remain closed in accordance with prior orders (restaurants and bars may continue to offer carry-out and delivery services). 

Additionally, the businesses that are permitted to reopen as part of Stage One may nevertheless be required to remain closed despite the Governor’s Order. As discussed, the flexible community-based approach of Stage One empowers local jurisdictions to make decisions regarding the timing of Stage One reopenings.

Some counties have decided to remain under local stay-at-home orders while others have either followed the governor’s phased reopening plan or adopted their own reopening plans. Given the divergence among local jurisdictions, it is imperative that Stage One businesses consult orders from their respective county executives to ensure that a reopening is permissible. Business owners can learn about how each county is handling business re-openings by visiting the Maryland County COVID-19 Site Directory .

Should your business encounter dilemmas due to the COVID-19 crisis, please contact us and we will be happy to assist you.

For additional information on the impact of the coronavirus, visit our COVID-19 information hub for a list of up-to-date content.

Abba David Poliakoff
410-576-4067 • apoliakoff@gfrlaw.com

Michele Bresnick Walsh
410-576-4216 • mwalsh@gfrlaw.com