Breaking down what businesses are “essential” in Idaho’s COVID-19 Stay-home Order

Yesterday, in an unprecedented effort to curb COVID-19 (coronavirus) ourbreaks, Idaho Governor Brad Little issued an executive “Stay-home” Order mandating residents to stay put for the next 21 days. The Order requires all residents to stay at home unless they work in an essential industry or venture out to perform an essential activity.

As for businesses, the Order mandates non-essential businesses close their offices:

The order further lays out what is considered essential and non-essesntial. Don Day of boisedev.com has done an excellent job listing what is considered non-essential and essential. https://boisedev.com/news/2020/03/25/whats-essential-and-whats-not-what-we-know .

However ambiguity exists over certain provisions. To help guide your business, here is Fisher Hudson Shallat’s legal interpretation of the top 3 most confusing provisions:

  1. Real Estate professionals are exempt when transferring property.

The order considers the purchase and sale of property to be operation of Essential Infrastructure:

Essential Infrastructure includes “construction of housing…. and the transfer and selling thereof..”

We interpret this provision to mean those professionals within the real estate industry may continue to perform services necessary to complete a transaction. This includes all professionals who perform work once a property is under contract, such as: appraisers, home inspectors, and title/escrow officers. Some of these jobs can be done remotely (title officer), some can’t (inspection, appraiser).

Therefore, if you are performing a necessary component to complete a real estate transaction which requires you to physically visit the property, you are working in an essential industry. This means you may go out to perform that portion of the job which requires a physical inspection of the property.

However, this exemption does not extend to properties not under contract. If you are a realtor and you do not have any properties under contract, stay home. Also, if you are a lender or title officer and you can do your job remotely, stay home.

2. Most legal and accounting professionals must stay home.

The order exempts legal and accounting professionals, but only under limited circumstances:

Attorneys, accountants and their staff may only continue physical operation of an office “when necessary to assist in compliance with legally mandated activities.” This means that attorneys with court hearings must still appear in Court, if they are complying with a court order.

However, given that Idaho courts have continued most in person hearings, except for emergency circumstances, its highly unlikely an attorney will meet this exception. The vast majority of civil attorneys are not-exempt under this order, and their staff are equally non exempt. If you’re an attorney, unless you have an emergency court hearing, you and your staff must stay home.

The same goes for accountants. Given that the filing deadline for taxes has been extended, accountants should close their doors for now.

3. A general exception for all businesses.

Despite this Order, business owners and their staff can still venture outside if they are performing a Minimum Basic Operation. This has been defined as:

Thus, business owners and their employees can still pick up and deposit checks or count inventory. However, this is a very narrow exception and those conducting a Minimum Basic Operation must still maintain social distancing requirements.