PUBLICATIONS

As you are all well aware, over the past several weeks counties throughout California have issued restrictive “shelter in place” orders (discussed in detail here and here).

This week, various Bay Area counties and municipalities issued new and revised “shelter in place” orders that extended the prior “shelter in place” orders and implemented additional and severe restrictions on businesses and non-essential personal activities.

New “Shelter In Place” Orders

This week, the following eight counties and the City of Berkeley issued new and expanded “shelter in place” orders:

• San Francisco County (order available here)
• San Mateo County (order available here)
• Alameda County (order available here)
• Contra Costa County (order available here)
• Santa Clara County (order available here)
• Marin County (order available here)
• City of Berkeley (order available here)
• Sonoma County (order available here)
• Napa County (order available here)

The new orders serve two purposes. First, they expand the timeframe of the “shelter in place” requirements. The prior orders took effect on March 17, 2020, and were set to end on April 7, 2020. The new orders (with their heighten restrictions) were put into effect on March 31, 2020 and will run through May 3, 2020, adding almost a month to the isolation period.

Second, as discussed in more detail below, the new orders clarify a few issues, create additional restrictions, and add more limitations on permitted activities throughout the impacted counties.

The orders for each county and/or city are virtually identical except a few terms are defined differently for certain counties.

Additional Restrictions and Changes to Prior “Shelter in Place” Orders

While the new orders maintain the same basic structure and minimal restrictions of the prior orders, they are more restrictive in a number of material ways, including:

• Mandatory Social Distancing. The new orders make clear that social distancing requirements are mandatory and must be practiced during all permitted travel and activities, except for a very limited number of exempt situations (providing childcare, adult or senior care, care to individuals with special needs, patient care or as necessary to carry out the work of Essential Businesses, Essential Governmental Functions, or provide for Minimum Basic Operations). The mandatory social distancing requirements are largely the same as from the prior orders, except that they add a new requirement to avoid all outside social interaction (even from 6 feet away) when sick with a fever or cough. The new social distancing requirements include:
  • Maintaining at least six-foot social distancing from individuals who are not part of the same household or living unit;
  • Frequently washing hands with soap and water for at least 20 seconds, or using hand sanitizer that is recognized by the Centers for Disease Control and Prevention as effective in combatting COVID-19;
  • Covering coughs and sneezes with a tissue or fabric or, if not possible, into the sleeve or elbow (but not into hands); and
  • Avoiding all social interaction outside the household when sick with a fever or cough.
• Mandatory Posting. Before April 3, 2020, essential businesses that continue to operate facilities in the affected counties must complete, post, and implement a social distancing protocol using the template here.
• Mandatory Remote Work (If Possible). The prior orders generally permitted employees of “Essential Businesses” to travel to work and to work in their normal workplace, so long as there was social distancing. The new orders mandate that even “Essential Businesses” must “maximize the number of employees who work from home,” and only “those employees who cannot perform their job duties from home” are permitted “to work outside the home.”
• Closure of Non-Essential Functions (Even For Essential Businesses). In the prior orders, “Essential Businesses” were generally permitted (and, in fact, encouraged) to stay fully open. The new orders require “Essential Businesses” to “scale down their operations to the Essential Business component only” to the “extent feasible.” The new orders, however, make clear that mixed retail businesses that are otherwise allowed to operate under the orders may continue to stock and sell non-essential products.
• Outdoor Recreation Permitted, but Closure of Certain Public Areas and Prohibition Of Many Sports. The prior orders did not specifically permit outdoor activities, such as hiking, walking, and running, although the governor made clear that such activities were permitted when he announced the orders in his press conference. The new orders make clear that such activities are permitted, so long as social distancing requirements are followed. However, the new orders clarify that outdoor activities at “parks, beaches, and other open spaces must be consistent with any restrictions on access and use” and mandate the closure of all “recreational areas with high-touch equipment or that encourage gathering” (playgrounds, outdoor gym equipment, picnic areas, dog parks, and barbecue areas) and “shared facilities for recreational activities” (golf courses, tennis and pickle ball courts, rock parks, climbing walls, pools, spas, shooting and archery ranges, gyms, disc golf, and basketball courts). Additionally, the new orders provide that “[s]ports or activities that include the use of shared equipment may only be engaged in by members of the same household or living unit.” For San Mateo County, outdoor activities are only permitted within 5 miles of an individual’s place of residence.

Changes to the “Essential Business” Categories

The new orders also make a number of small and large changes to what qualifies as an “Essential Business.” The new list includes the following as “essential businesses” (categories with major changes from prior orders in bold):

Essential Businesses

• Healthcare Operations and businesses that operate, maintain, or repair essential Infrastructure;
• Grocery stores, certified farmers' markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of unprepared food, canned food, dry goods, non-alcoholic beverages, fresh fruits and vegetables, pet supply, fresh meats, fish, and poultry, as well as hygienic products and household consumer products necessary for personal hygiene or the habitability, sanitation, or operation of residences. These businesses include establishments that sell multiple categories of products provided that they sell a significant amount of essential products identified here, such as liquor stores that also sell a significant amount of food.
• Food cultivation, including farming, livestock, and fishing;
• Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;
• Construction, but only of the types listed below:
  • Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure;
  • Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response;
  • Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units;
  • Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;
  • Shelters and temporary housing, but not including hotels or motels;
  • Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;
  • Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so; and
  • Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed.
• Newspapers, television, radio, and other media services;
• Gas stations and auto-supply, auto-repair (including, but not limited to, for cars, trucks, motorcycles and motorized scooters), and automotive dealerships, but only for the purpose of providing auto-supply and auto repair services (and not, by way of example, car sales or car washes). These restrictions do not apply to the on-line purchase of automobiles if they are delivered to a residence or Essential Business;
• Bicycle repair and supply shops;
• Banks and related financial institutions;
• Service providers that enable residential transactions (including rentals, leases, and home sales), including, but not limited to, real estate agents, escrow agents, notaries, and title companies, provided that appointments and other residential viewings must only occur virtually or, if a virtual viewing is not feasible, by appointment with no more than two visitors at a time residing within the same household or living unit and one individual showing the unit (except that in person visits are not allowed when the occupant is still residing in the residence);
• Hardware stores;
• Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the habitability, sanitation, and operation of residences and Essential Businesses, but not for cosmetic or other purposes;
• Arborists, landscapers, gardeners, and similar service professionals, but only to the limited extent necessary to maintain the habitability, sanitation, operation of businesses or residences, or the safety of residents, employees, or the public (such as fire safety or tree trimming to prevent a dangerous condition), and not for cosmetic or other purposes (such as upkeep);
• Businesses providing mailing and shipping services, including post office boxes;
• Educational institutions—including public and private K-12 schools, colleges, and universities—for purposes of facilitating distance learning or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible;
• Laundromats, drycleaners, and laundry service providers.
• Restaurants and other facilities that prepare and serve food, but only for delivery or carry out. Schools and other entities that typically provide free food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and take-away basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site;
• Funeral home providers, mortuaries, cemeteries, and crematoriums, to the extent necessary for the transport, preparation, or processing of bodies or remains;
• Businesses that supply other Essential Businesses with the support or supplies necessary to operate, but only to the extent that they support or supply these Essential Businesses. This exemption shall not be used as a basis for engaging in sales to the general public from retail storefronts;
• Businesses that have the primary function of shipping or delivering groceries, food, or other goods directly to residences or businesses. This exemption shall not be used to allow for manufacturing or assembly of non-essential products or for other functions besides those necessary to the delivery operation;
• Airlines, taxis, rental car companies, rideshare services (including shared bicycles and scooters), and other private transportation providers providing transportation services necessary for Essential Activities and other purposes expressly authorized in this Order;
• Home-based care for seniors, adults, children, and pets;
• Residential facilities and shelters for seniors, adults, and children;
• Professional services, such as legal, notary, or accounting services, when necessary to assist in compliance with non-elective, legally required activities;
• Services to assist individuals in finding employment with Essential Businesses;
• Moving services that facilitate residential or commercial moves that are allowed under this Order;
• Childcare facilities providing services that enable owners, employees, volunteers, and contractors for Essential Businesses or Essential Governmental Functions to work as permitted. Children of owners, employees, volunteers, and contractors who are not exempt under this Order may not attend childcare facilities.

Notably, the new orders add certain limited areas of construction to the “Essential Business” list. In the prior orders only construction related to “Essential Infrastructure” was permitted. The new orders also add bicycle repair and supply shops, certain real estate activities, landscaping/gardening (non-cosmetic), funeral homes/mortuaries, job-placement servicers (for essential jobs), and limited moving services to the list of “Essential Businesses.”

The new orders removed “[b]usinesses that supply products needed for people to work from home” from the “essential" list.

Expansion of “Minimum Basic Operations”

As with the prior orders, the new orders permit non-essential business to perform certain basic minimum operations. The new orders slightly expand the definition of “minimum basic operations” as follows (additions in bold):

• The minimum necessary activities to maintain and protect the value of the business's inventory and facilities; ensure security, safety, and sanitation; process payroll and employee benefits; provide for the delivery of existing inventory directly to residences or businesses; and related functions.
• The minimum necessary activities to facilitate owners, employees, and contractors of the business being able to continue to work remotely from their residences, and to ensure that the business can deliver its services remotely.

Most of the above changes are reasonable clarifications or minor expansions of the prior orders. However, the expansion to include the delivery of existing inventory is a material change and likely permits many businesses, even a non-essential ones, to continue to generate revenue in some capacity.

Sonoma County’s “Shelter in Place” Order

While the other counties’ “shelter in place” orders contain nearly identical restrictions, Sonoma County’s order is slightly different. The following are a few of the major differences:

• The following businesses were included as essential: short-term lodging facilities (including short-term rentals, vacation rentals, timeshares, hotels, motels, and other short-term lodgings) only to the extent they provide lodging to protect the homeless population, lodging for displaced residents because a person at their place of residence must isolate or quarantine, lodging for residents who need to isolate or quarantine, and/or housing support for Healthcare Operations, Essential Infrastructure, Essential Businesses, and Essential Governmental Functions;
• For work related to “Minimum Basic Operations,” businesses are required to use only the minimum number of persons on the site to perform work when such activities cannot be performed remotely; and
• Businesses engaged in the production, cultivation, processing, testing, or distribution of food, beverage, or other agricultural product (e.g., farms, ranches, fishing, dairies, creameries, wineries, breweries, and licensed cannabis businesses and businesses that support those businesses are closed to the public, except for retail sales (which could occur via curbside pick-up delivery, shipping, produce stands or farmer’s markets).

Napa County’s “Shelter in Place” Order

Similarly, Napa County’s order contains nearly identical restrictions as other County orders but is slightly different, including but not limited to the following:

• The following businesses are explicitly included as essential:
  • Food cultivation is expanded to include businesses associated with planting, growing, harvesting, processing, cooling, storing, packaging, and transporting such products, or the wholesale or retail sale of such products, provided that, to the extent possible, such businesses comply with Social Distancing Requirements and otherwise provide for the health and safety of their employees;
  • Medical device manufacturers, distributors, warehouse facilities, suppliers and servicers, including diagnostics, equipment, and all other activities, supplies and services required to maintain supply chain operations without disruption;
  • Faith-based services provided through streaming or similar technology; and
  • Licensed cannabis businesses, but only for the purpose of providing cannabis via curbside pickup or delivery.
• The operations of hotels, motels, and shared rental units and similar facilities may continue to provide shelter to existing visitors, provided that visitors comply with Social Distancing Requirements and other provisions of the County’s Order, but shall not receive new occupants nor make any reservations for stays of less than 30 days.

Hotels, motels, shared rental units and similar facilities may allow occupancies for less than a minimum stays of 30 days only to provide: (1) lodging to protect the county homeless population; (2) lodging for county residents who have been displaced and cannot return to their residence because there is a person residing at their residence that must isolate or quarantine or is at a high risk of severe illness from COVID-19; (3) lodging for county residents who need to isolate or quarantine; (4) housing support for Healthcare Operations, Essential Infrastructure, Essential Businesses, and Essential Governmental Functions (i.e. housing traveling nurses or government contractors). Hotels, motels, shared rental units and similar facilities shall not operate for tourism.

• Construction is further limited, by several additional restrictions, including but not limited to
  • Preclude gatherings of any size, and anytime two or more people must meet, ensure a minimum 6-foot separation.
  • Provide personal protective equipment such as gloves, goggles, face shields and face masks as appropriate for the activity being performed.
  • Identify “choke points” and “high-risk areas” where workers are forced to stand together, such as hallways, hoists and elevators, break areas, and buses, and control them so social distancing is maintained.
• Automobile dealerships may continue to operate, without being limited to providing auto-repair services and auto supplies (note: the operation of automobile dealerships is likely not permitted under the state-wide order, which must be followed).
• Alcohol and drug treatment providers, social service providers, and homeless service providers are explicitly added to the list of “Healthcare Operations.”

Solano County’s “Shelter in Place” Order

Solano County, which is not listed above, also issued a new “shelter in place” order. However, its “new” order did not materially change its old order (discussed here) and simply extended its prior order to April 30, 2020. Solano County did not adopt the new restrictions outlined above.

Interplay with State-Wide Executive Order

On March 19, 2020, Governor Newsom enacted a statewide “stay at home” order, Executive Order N-33-20 (our Alert discussing the order is available here). There is an open question as to the interplay between the state-wide order and the local orders. What is clear is that the state-wide order must be followed at all times, as the state generally has more authority to regulate. Accordingly, if the state-wide order is more restrictive and does not permit a business to remain open, it should close even if a local order indicates that the business can remain open.

What is less clear is where the local order is more restrictive. In other words, can local governments close down businesses that could operate under the state-wide order? The answer will likely depend upon whether there is a true conflict between the orders. See, e.g., Great Western Shows v. County of Los Angeles, 27 Cal. 4th 853 (2012). Specifically, it will likely come down to whether the state-wide order was intended to affirmatively permit certain essential businesses to remain open or was an order that merely restricted non-essential business. The language of the state-wide order likely suggests the former: “Californians working in the[] 16 critical infrastructure sectors may continue their work because of the importance of these sectors to Californians’ health and well-being.”

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 that operate a facility should immediately implement the social distancing protocol identified above.
• 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 maximize the number of employees that work from home.
• Employers should also consider whether they need to scale down operations to their essential components only.

These Orders will have a significant impact on employers and residents 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, Noah M. Woo, nwoo@fordharrison.com, and Jamin Xu, jxu@fordharrison.com. Of course, you may also contact the FordHarrison attorney with whom you usually work.

Please click here for links to other mandates issued by states and major municipalities.

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