April 22, 2020
On April 20, 2020 the governors of Colorado and Georgia announced plans to begin easing the restrictions the states imposed in response to the outbreak of COVID-19. Certain businesses will be permitted to reopen so long as they follow state social distancing laws and guidelines designed to limit the spread of the virus. These precautions are intended to keep any increase in COVID-19 cases to a level that can be managed by the states’ hospital systems. The plans of each state, as set out in a slide presentation by the governor of Colorado and an executive order issued by the governor of Georgia, are discussed below. Colorado urges its citizens to remain at home when they can, and Georgia’s plan includes a detailed list of mandatory precautions. In Colorado, there will be a process for local governments to issue stricter local rules based on local conditions; in Georgia such local control is expressly forbidden by the governor’s executive order. Colorado and Georgia provide different approaches to emerging from the COVID-19 restrictions and may serve as competing models as other states consider how and when to begin lifting their own COVID-19 restrictions.
On April 20, Colorado Governor Polis announced a plan to scale back the restrictions on business activity currently in effect in the state. The plan, which we expect to be further detailed in the coming days, is designed to allow physical distancing rates — a measure of reductions in person-to-person interactions — which are now at 75%-80%, to decline to, but no further than, 60%-65%. In combination with the other measures the plan will include, the state expects a 60%-65% social distancing rate to keep the infection rate low enough that the outbreak can be managed by the state’s medical infrastructure.
According to the Governor’s April 20 presentation, Colorado’s current stay-home order will be permitted to lapse on Sunday, April 26, 2020 and will be replaced by the new rules. The presentation makes clear that “[t]here will be a process for local governments to modify these standards based on local conditions.” See Presentation of Jared Polis, Gov. of Colo. (Apr. 20, 2020). Under the new plan the Governor’s Office continues to encourage the citizens of Colorado, especially members of particularly vulnerable populations, to stay home as much as possible. The plan includes as well the following mandatory and optional provisions:
Georgia’s plan to reopen its economy — which is set out in Governor Kemp’s Executive Order 04.20.20.01 — is modeled on the “Opening Up America Again” guidelines issued by the White House. Governor Kemp has presented his plan as a “phase-one” reopening under those guidelines. See Ga. E.O. 04.20.20.01. The governor has emphasized that Georgia’s increased hospital capacity will help ensure that the outbreak does not overwhelm the state’s medical infrastructure, and is working to increase testing capacity. The state’s existing shelter-in-place order will remain in effect until April 30, but certain businesses will be permitted to reopen, subject to a detailed list of mitigation measures, on Friday, April 24 and Monday, April 27.
In contrast to the approach taken by Colorado — which allows localities to apply stricter regulations as appropriate — Georgia’s executive order expressly supersedes conflicting local rules. In Georgia, municipalities generally have statutory home rule protections and counties have constitutional home rule protections that are subject to definition by statute. See Ga. Const. art. IX, § 2, ¶ I; Ga. Code § 36-35-3. The governor, however, has the emergency power to suspend statutes and has expressly decreed that his executive order will override the statutory home rule provisions on which local and county orders rely. See Ga. E.O. 04.02.20.01; Ga. Code § 38-3-51(d)(1).
The details of the April 27 reopening have yet to be announced, but dine-in restaurants, social clubs, and theaters are expected to be permitted to resume operations and be required to comply with the stringent precautionary rules detailed below as well as additional social distancing measures.
The governor’s April 20 executive order announces those businesses permitted to reopen on April 24 and sets out the restrictions applicable to them. The order allows these businesses to reopen for “Minimum Basic Operations,” defined to “include remaining open to the public subject to the restrictions of this Order.” The order lists twenty protocols with which business must comply.
Pursuant to the governor’s executive order, the following businesses may reopen on April 24:
Each of these businesses must comply with following mitigation measures
Gibson Dunn is monitoring the situations in Colorado and Georgia as harbingers of what may come in other states as well.
Gibson Dunn’s lawyers are available to assist with any questions you may have regarding developments related to the COVID-19 outbreak. For additional information, please contact your usual contacts or any member of the Firm’s Coronavirus (COVID-19) Response Team or the following authors:
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