State and local governments across the U.S. are issuing mandatory shutdown orders, “shelter-in-place” orders, and related interpretive guidance—all designed to immediately restrict the congregation and movement of people during the Covid-19 pandemic. These orders vary in substance and specific restrictions, but most exclude from the restrictions “life-sustaining” or “essential businesses” that may keep their brick-and-mortar offices open. Nonessential businesses must close their offices and may engage in remote work.
Many staffing firms provide temporary and contract workers to essential or life-sustaining businesses such as hospitals, pharmacies, warehouses, etc., and it is for this reason that Maryland has deemed staffing firms as essential businesses. Some state orders simply refer to the U.S. Department of Homeland Security Guidance, issued by DHS’ Cybersecurity and Infrastructure Security Agency on March 19, which identifies workers who should be considered essential to critical infrastructure across many industry sectors. In many jurisdictions’ orders, staffing firms are either omitted from lists of essential businesses (e.g., Illinois) or denoted as nonessential (e.g., Pennsylvania, which denotes “employment services” as nonessential). The question therefore becomes whether staffing firms can keep their offices open in these jurisdictions.
Some orders (e.g., New York) allow businesses that supply essential businesses with essential services to remain open, and ASA believes that a strong argument can be made that staffing firms providing workers to such business provide essential services—and thus should be allowed to keep their offices open and staff them to the extent necessary to provide those services.
Other orders do not explicitly allow for companies servicing essential businesses to remain open and, as noted, either omit staffing from their lists of essential businesses or denote employment-related services as nonessential. In such states, a conservative approach would be for staffing firms providing essential services to operate remotely to the extent possible. However, ASA recognizes that some functions, such as processing payroll, can at times require a physical presence in staffing firm offices. Firms therefore might consider using skeleton crews, for minimal times in the office, to accomplish these tasks. To the extent challenged by state authorities, such firms could credibly argue that their services are necessary for essential businesses to function, and thus the firms’ offices must be allowed to function.
Regarding temporary workers assigned to essential businesses, it would be prudent for such workers to carry with them documentation—issued either by the staffing firm or by the client—establishing that they are working for an essential business. The documentation should specify the name of the client and its essential services; it can be shared by workers with state authorities as necessary.
The foregoing issues generally have not been addressed by states or localities through formal guidance or otherwise. Therefore, staffing firms should discuss their particular circumstances and jurisdictions’ orders with their legal counsel and determine how best to function efficiently while protecting their workers and servicing their clients.
