How to Respond to Law Enforcement When My Company is an Essential Business

How do I respond to law enforcement that may not know that my company is allowed to operate as an Essential Business and Operation under the Safer At Home Order?

Law enforcement has generally taken the position that they want to work with the public as to enforcement. For example, the Dane County Chiefs of Police Association released a letter stating that:

“[i]t will not be our practice under this order to randomly stop people who are traveling to and from their residence or who are out and about in their communities within the exempted parameters. However, if we receive information about large outdoor gatherings or become aware of someone or a group of individuals blatantly ignoring the order, we will take appropriate action to encourage compliance.”

What should an employee that is working for an Essential Business and Operation do if he is contacted by police while working?

First, be respectful and do not create a confrontation if the police officer(s) order you to leave the worksite. After the jobsite is shutdown, then the business can address the issue directly with the authorities in a legal manner.

Second, the employer should consider giving their employees a letter on company letterhead to have while traveling to work and while at the jobsite that: (1) explains why the business is an Essential Business and Operation under the Order; and (2) that the employee is operating as an employee of the Essential Business and Operation. This letter may be presented to the police officer. All employees should be asked to use common sense. The letter may be helpful to a police officer to expedite the interaction but it should not be used as an excuse to ignore the police officer. The first rule should be to always follow the police officer’s orders while simultaneously being mindful that you still have a constitutional right to not incriminate yourself.

What should an Essential Business and Operation do if its jobsite is closed by a governmental entity because it does not believe your business is an Essential Business and Operation?

First, the business will have to contact the jurisdictional authority that shut down its worksite and provide the decision makers the information that establishes that it is an Essential Business and Operation. For example, if a City’s police officer shuts down a jobsite, the business owner or representative should contact the Mayor’s Office, the City Attorney’s Office, and the Chief of Police’s Office or her or his designee.  If the City agrees that there was a mistake in shutting down the job site, you should request written confirmation for the future.

Second, if the City disagrees, the only avenue would be to file an action in the court system, and ask for expedited relief. This type of action should be a last resort, but may be necessary depending on the situation.

In the end, everyone needs to use common sense. The worst thing for an employee and for our businesses that are allowed to operate as Essential Businesses and Operations, is that a situation escalates. The Safer At Home Order tries to balance the need to protect the public from COVID-19, and the need for Essential Businesses and Operations to continue to operate. Any time such Orders are issued quickly there is going to be ambiguity, and common sense should be used to respect that balance.