Summary: On March 19, 2020, California Governor Gavin Newsom issued a state-wide “stay at home” order requiring California residents to remain at home, with two exceptions: (1) to obtain food, prescriptions, and healthcare; and (2) to maintain the continuity of operations of certain federal “critical infrastructure sectors.” The California Order is discussed below. Los Angeles County, San Diego County, Santa Cruz County, Monterey County, San Benito County, Napa County, Sacramento County, Placer County, and Yolo County have issued similar Orders, which are also discussed below.
Additionally, earlier this week, six San Francisco Bay Area counties issued “shelter in place” orders that significantly limited non-essential business activities, personal activities, and travel. In sum, those orders require individuals to stay at home unless they leave for an approved reason, and non-essential businesses must cease most operations. More information is available in our March 17, 2020 Alert. Further, Sonoma County, Ventura County, and the City of Palm Springs have issued their own such orders, as discussed in our March 18, 2020 Alert.
CALIFORNIA SHELTER IN PLACE ORDER
Effective immediately, California has enacted a statewide “shelter in place” order in response to the COVID-19 emergency. The order will remain in effect until further notice.
Summary of Order
California residents are ordered to remain at home with two exceptions:
- To obtain food, prescriptions, and healthcare
- To maintain the continuity of operations of certain federal “critical infrastructure sectors.”
Critical Infrastructure Sectors Defined
The California Executive Order adopts guidance from the federal Cybersecurity and Infrastructure Security Agency (CISA), establishing 16 “sectors” that are considered “essential critical infrastructure” and should remain open, including:
- Chemical
- Commercial Facilities
- Communications
- Critical Manufacturing
- Dams
- Defense Industry
- Emergency Services
- Energy
- Financial Services
- Food and Agriculture
- Government
- Healthcare
- Information Technology
- Nuclear Reactors, Materials and Waste
- Transportation Systems
- Water and wastewater
Late last night, the state provided updated guidance on the Executive Order expanding the scope of sectors that can remain open to include:
- Critical Government Services
- Schools
- Childcare
- Construction, including housing construction
More information on these sectors is available at https://www.cisa.gov/critical-infrastructure-sectors.
What This Means
The California Order does not directly shut down any businesses. However, it prevents individuals from leaving their homes to go to work at a business that is not considered “essential critical infrastructure.” Non-essential businesses that can be operated remotely may continue to operate, but will likely have to shut down any physical locations.
LOS ANGELES TO LIMIT GATHERINGS; CLOSE CERTAIN BUSINESSES
Summary: On Thursday, March 18, 2020, Los Angeles joined San Francisco, Ventura County, and others by implementing the “Safer at Home Order for Control of COVID-19.” The Order is in effect from 11:59 p.m. on March 19, 2020 to April 19, 2020.
Restrictions on Gatherings
Except as otherwise provided, all public and private events and gatherings of 10 or more people at the same time are prohibited in Los Angeles County.
Organizers of public and private gatherings attended by 2-9 people must
- Enforce social distancing measures (separation of 6 feet) except among family members or household contacts;
- Provide access to hand washing facilities or hand sanitizer;
- Post a sign instructing attendees not to attend if they are experiencing respiratory illness, including fever or cough; and
- Adhere to communicable disease control recommendations.
The Order does not apply to healthcare operations or essential infrastructure (e.g., public works, housing construction, airport, utilities, public transportation, telecommunications, manufacturing, and distribution companies).
The Order does not prohibit any of the following:
- Attendance at regular school classes
- Attendance at work at Essential Businesses
- Attendance at essential government services
- Places where people are in transit or waiting for transit (e.g., airports, train station)
- Congregate living situations, including dormitories
- Hospitals and healthcare facilities
Closure of Certain Businesses
The following businesses must close during the effective period:
- Non-Essential retail businesses, which are defined to include retail establishments that provide goods or services to the public that do not fall within the definition of “Essential Businesses”
- Indoor Malls and Indoor Shopping Centers (except for Essential Businesses with external egress available)
- Indoor or Outdoor Playgrounds for Children, except for those located within childcare centers
- Gyms and fitness centers
“Essential Businesses” are defined to include:
- Grocery stores and farmers markets
- Convenience stores and gas stations
- Any retail establishment that sells food, pet supplies, water, or any other household consumer products (including cleaning or personal care products)
- Stores that sell products necessary to maintaining the safety, sanitation, and essential operation of residences.
- Food cultivation, including farming, livestock and fishing
- Businesses that provide food, shelter, and social services to economically disadvantaged individuals
- Media
- Auto-supply, auto-repair, and car dealerships
- Banks
- Hardware stores, nurseries, and building supplies
- Plumbers, electricians, exterminators, custodial/janitorial workers, handyman services, moving services, HVAC installers, carpenters
- Landscapers and gardeners
- Private security personnel
- Mailing and shipping services
- Educational institutions for the purposes of facilitating distance learning or performing essential functions
- Laundromats and dry cleaners
- Personal grooming services
- Restaurants, but only for delivery, drive, thru, or carry out
- Businesses that supply office or computer products
- Businesses that ship or provide logistical support or deliver groceries, food, or goods, or services
- Airlines, taxis, and other private transportation providers
- Home-based care for seniors
- Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities, and the permitting, inspection, construction, transfer and recording of ownership, of housing and anything incidental thereto.
- Military/defense contractors
- Childcare facilities providing services that enable employees exempted in this Order to work as permitted, with certain limitations
- Hotels
SAN DIEGO COUNTY RESTRICTIONS
Summary: San Diego County’s March 16, 2020 Order of the Health Officer and Emergency Regulations was amended effective from 12:00 a.m. on March 19, 2020 to March 31, 2020. However, with the issuance of the State Order referenced above, the San Diego County Health Office has removed this Order and Amendment from its website and replaced it with the State Order, but no official rescission of the Order has been issued. Thus, it is unclear at this time whether the prior San Diego Order and Amendments remain in effect.
Until official direction from the San Diego County Health Officer is published, those in San Diego County should continue to abide by the Order and Amendment to the extent the directives therein differ from the State Order. Specifically, it is recommended that those in San Diego County adhere to gathering and social distancing requirements while complying with the State Order.
Restrictions on Gatherings in San Diego County
Except as otherwise provided, under the Order and Amendment, in San Diego County all public and private “gatherings” of 10 or more people at the same time are prohibited. All non-essential gatherings of any size are strongly discouraged. All gatherings are strongly encouraged to practice social distancing (separation of 6 feet).
A “gathering” is defined as “any event or convening that brings together 10 or more people in a single room or single space at the same time, such as an auditorium, stadium, arena, theater, church, casino, conference room, meeting hall, cafeteria, or any other indoor or outdoor space.”
All businesses authorized to remain open must adhere to gatherings standards and enact:
- Social distancing measures (separation of 6 feet) except among family members;
- Increased sanitation standards;
- Make every effort to use telecommuting for its workforce
Closure or Restriction of Certain Businesses in San Diego County
The following closures or restriction are in the Order and Amendment during the effective period:
- All restaurants and other business establishments that serve food shall close all on-site dining. All food served shall be by delivery, or through pick-up or drive thru. Social distancing shall be required for persons picking up food on site.
- All bars, adult entertainment establishments, and other business establishments that serve alcohol shall close.
- All gyms and fitness centers shall close.
- Restrictions regarding daycare/childcare facilities: No more than 10 children in a group, no changing groups, groups must be in a separate room, groups must not mix, childcare providers remain solely with one group.
- Restriction on non-essential personnel accessing healthcare facilities
The Order and Amendment does not prohibit:
- Operations at airports, public transportation or other spaces where 10 or more persons may be in transit but able to practice social distancing. It also does not include essential businesses where many people are present but are able to practice social distancing. Note that the San Diego Order and Amendment does not define “essential businesses;” as such, it is recommended that those in San Diego should apply the definition in the State Order described above.
- Emergency shelters, homeless shelters, or other similar essential gatherings that are for the protection of public health and safety and where appropriate precautions are taken that follow federal, State, and local public health guidance regarding COVID-19.
NORTHERN CALIFORNIA COUNTIES ALSO ISSUE SHELTER IN PLACE ORDERS
The following Northern California counties have also issued shelter in placer orders: Santa Cruz County, Monterey County, San Benito County, Napa County, Sacramento County, Placer County, and Yolo County. The Santa Cruz County order went into effect on March 17, 2020. The orders for San Benito and Monterey Counties became effective on March 18. Sacramento and Yolo Counties’ orders went to effect on March 19, with the orders applicable to Napa and Placer County becoming effective on March 20. With the exception of Placer County, the shelter in place orders for these counties are in effect until April 7. The Placer County order expires on April 10.
New Orders Largely Mirror Those in Bay Area Counties
As discussed in a previous legal alert, the shelter in place orders implemented in San Francisco, San Mateo, Santa Clara, Alameda, Marin, and Contra Costa Counties include two different mandates for employers, depending on whether an employer is considered an “essential business.” Such essential businesses can remain open, but must adhere to “social distancing requirements.” Non-essential businesses are largely required to go remote, except to address the following minimum basic operations: (1) the minimum necessary activities to maintain the failure of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions; and (2) the minimum necessary activities to facilitate the employees of the business being able to continue to work remotely.
The orders issued in other Northern California counties largely mirror the Bay Area orders, except for the following notable differences:
Monterey County
- The Monterey County defines the essential business of “food cultivation” more extensively and as including “[a]ny form of cultivation for products for personal consumption or use, including farming, ranching, livestock, and fishing, and associated activities, including, but not limited to, activities or businesses associated with planting, growing, harvesting, processing, cooling, storing, packaging, and transporting such products, or wholesale or retail sale of such products, provided that, to the extent possible, such business comply with Social Distancing Requirements and otherwise provide for the health and safety of their employees.”
- “Commercial construction” is an essential business, “provided that such activity implements Social Distancing Requirements to the [extent] feasible and otherwise provides for the health and safety of their employees.”
Napa County
- Napa County utilizes the same “food cultivation” definition as Monterey County.
- Essential businesses include “[m]anufacturers, distributors, warehouse facilities, suppliers and servicers of medical devices, diagnostics, equipment and services, including all other activities, supplies and services required to maintain supply chain operations without disruption.”
- Essential businesses include cemetery and funeral service provides.
Sacramento County
- Sacramento County’s order does not include language stating that a violation of the order is “a misdemeanor punishable by fine, imprisonment, or both.”
- Essential Businesses include “[a]griculture, food and beverage cultivation, processing, and distribution, including but not limited to, framing, ranching, fishing, dairies, creameries, wineries and breweries in order to preserve inventory and production (not for retail sale).”
Placer County
- Like Sacramento County, Placer County’s order does not include language stating that violation of the order is “a misdemeanor punishable by fine, imprisonment, or both.”
- Essential businesses include “blood donation and related activities.”
- “Agriculture production and processing” as an essential business includes “the cultivation of products for personal consumption or use through farming, ranching, livestock, and fishing, as well as business activities that support production and processing by providing essential agricultural supplies and services, including but not limited to, transportation, manufacturing, chemicals, equipment, and services such as cooling, storing, packaging, and distribution of products for wholesale or retail sale.”
Yolo County
- "Agriculture production and processing” as an essential business is defined in the same way as in Placer County.
Interplay Between State-Wide Executive Order and Local Orders
As discussed above and in prior legal alerts concerning local shelter in place orders, “essential businesses” are permitted to stay open and operate normally (while adhering to social distancing requirements). However, the state-wide order applies to “Essential Critical Infrastructure,” which is different than the “Essential Business” list included in local orders. Accordingly, while there is a large amount of overlap, the analysis as to what qualifies under the “Essential Critical Infrastructure” state-wide standard is different than the analysis as to what qualifies under the “essential business” local standards.
There is potentially a strong argument that the local orders are preempted by the state-wide order. See, e.g., Great Western Shows v. County of Los Angeles, 27 Cal. 4th 853 (2012). However, that has not been decided or made clear. Accordingly, the safest approach is to comply with the state-wide order and any local order, if possible.
Recommendations
We recommend the following for employers in the counties discussed above with respect to compliance with county-issued restrictions and shelter in place orders:
- All employers in these counties should determine whether they are an essential or non-essential business.
- Employers that determine they are non-essential should shut down all operations apart from remote work and the minimum basic operations.
- All employers in the counties above should implement social distancing requirements.
- Employers should also comply with the state-wide stay at home order, as discussed above.
These Orders will have a significant impact on employers in California. FordHarrison attorneys are available to assist you in implementing these changes and ensuring compliance with this and the other similar “Shelter in Place” orders. If you have any questions or need assistance in complying with these Orders, please contact the authors of this Alert, Ross Boughton, rboughton@fordharrison.com, Tim Reed, treed@fordharrison.com, and Daniel Lyman, dlyman@fordharrison.com, in our San Francisco Bay Area office; Stefan Black, sblack@fordharrison.com, David Cheng, dcheng@fordharrison.com, and Jack Schaedel, jschaedel@fordharrison.com , in our Los Angeles office; and Cory King, cking@fordharrison.com, in our San Diego office. Of course, you may also contact the FordHarrison attorney with whom you usually work.
FordHarrison is closely monitoring the spread of Coronavirus and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce page for the latest FH Legal Alerts and webinars on Coronavirus, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce attorney, please contact clientservice@fordharrison.com