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The situation is rapidly changing each day as states decide how best to slow the spread of COVID-19. Over the past few days, several states have issued shelter-in-place orders or updated guidance on what types of businesses are and are not permitted to continue running as usual.
Nevada's governor initially provided guidance for the closure of non-essential businesses. On Friday, that guidance is no longer a recommendation, but an order. In effect until April 16, 2020, the governor has officially ordered businesses "not essential to providing sustenance and for the everyday safety, health, and wellbeing of Nevadans" to shut down.
Specifically of interest to our readers, an update notice from the Nevada Department of Business and Industry, Financial Institutions Division clarifies that collection agencies are non-essential.
Based upon the above, a collection agency is deemed a non-essential business at this time. Accordingly, the Nevada Financial Institutions Division must enforce the Governor’s mandatory emergency directive and direct all collection agencies holding a license under Nevada Revised Statutes Chapter 649 and located in this State to close effective midnight tonight until April 16, 2020, unless otherwise modified or withdrawn by Governor Sisolak. All collection agencies holding a license or certificate under Nevada Revised Statutes Chapter 649 and located out-of-state must cease collection efforts with Nevada consumers/residents effective midnight tonight until April 16, 2020, unless otherwise modified or withdrawn by Governor Sisolak.
The governor's notice adds:
By signing the directive, I am granting local governments the authority they do not currently have to impose civil penalties—including fining and revoking licenses—of businesses that do not shut down...If businesses defy this directive and stay open, state AND local law enforcement will the ability to treat this as a criminal act after all other options have been exhausted.
New and Updated Shelter-in-Place Orders
Over the weekend, several states have issued new or updated shelter-in-place orders. Those states include (in alphabetical order):
On Sunday, March 22, Connecticut's governor released guidance to businesses on how to proceed mind the previously-issued state-wide orders. Connecticut issues a stay-at-home order on March 10. Then, on March 20, the governor issued another executive order that directs the use of telecommuting options where possible and that non-essential business entities reduce their in-person workforce no later than 8pm on Monday, March 23.
Collection agencies are not explicitly listed in the guidance as being essential businesses, but other related businesses are, such as: financial institutions such as banks, accounting and payroll services, and legal and accounting services.
On Friday, March 20, the governor of Illinois issued an executive stay-at-home order. The order requires that non-essential businesses cease operations unless they are able to perform via telecommuting from residences. Section 12 of the order lists businesses considered as "essential." Under the financial institution subsection, the order lists the following businesses as essential:
- Consumer lenders, including but not limited, to payday lenders, consumer installment lenders, and sales finance lenders
- Credit unions
- "Affiliates" of financial institutions.
On Sunday, March 22, Louisiana's governor issued a stay-at-home order that is effective until April 12. Louisiana residents are ordered to stay home except for essential outings.
Today, Maryland's Office of Legal Counsel issued interpretive guidance as to what businesses fall under the essential category of the governor's March 19, 2020, order closing all non-essential businesses. Related to the financial sector, the guidance states that the following—among others—are considered essential:
- Banks and credit unions
- Non-bank lenders
- Payment processing companies
- Accounting and bookkeeping firms
Today, Massachusetts' governor issues an emergency order, which requires all non-essential businesses to close their physical workplaces and facilities. The order is effective as of Tuesday, March 24, through April 7 at noon. The governor also provided a list of businesses considered essential. For financial services, the following are considered essential:
- Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities)
- Workers who are needed to provide consumer access to banking and lending services, including ATMs, and to move currency and payments (e.g., armored cash carriers)
- Workers who support financial operations, such as those staffing data and security operations centers
The governor of New Jersey has issued a state-wide "stay at home" order, which also requires the closure of all non-essential retail businesses. Banks and financial institutions are listed as exceptions to this order.
New York's governor issued an executive order directing non-essential businesses to close in-office personnel functions as of 8PM on Sunday, March 22. The order lists the following financial institutions as essential: banks, payroll, accounting, and services related to financial markets.
Ohio's governor issued a shelter-in-place order, effective at 11:59pm tonight (Monday, March 23) until April 6, unless otherwise amended. The order requires that residents stay home except for essential outings. The order requires non-essential businesses to close. Ohio uses the U.S. Department of Homeland Security's definition of essential business.
Other than in Nevada, there is no explicit guidance on whether or not collection agencies fall under the definition of essential business. We will keep track of any developments—such as the update about Nevada, which provided clarification. In the meantime, companies should speak with their legal counsel to determine if they fall under the "essential" business category.