The New Orders

On March 31, 2020, the following six Bay Area counties issued revised “Shelter in Place” Orders (“Orders”) that went into effect that same day at 11:59 p.m.: San Francisco, Santa Clara, Marin, Alameda, San Mateo, and Contra Costa, and the City of Berkeley.  The new Orders revise and replace the existing Shelter In Place Orders which were set to expire on April 7, 2020.  Significantly, these Orders do not merely extend existing orders to May 3, 2020, but make material changes to several provisions and add additional requirements that Bay Area employers must immediately understand and implement.

 Coronavirus, Social Distancing

The new Orders impose many new limitations and requirements on employers and business operations.  To comply with the Orders, employers and businesses must immediately understand and implement several new substantive provisions.  The crucial provisions that impact employers are: (1) the list of Essential Businesses has been revised and clarified; (2) Essential Businesses must maximize the number of employees who work from home; (3) Essential Businesses that continue to operate facilities must scale down operations to their essential component only; (4) before April 3, 2020, Essential Businesses must prepare, post, and implement a Social Distancing Protocol at each of their facilities using a template provided by the counties; and (5) Essential Businesses must monitor and follow industry-specific guidance issued by the health officer of their respective county.

The Orders are detailed and impact daily life for all Bay Area residents and businesses.  Thus, it is incumbent upon everyone, especially employers, to understand and abide by them.

How Long Are the New Orders in Effect?

The Orders will remain in effect until May 3, 2020 at 11:59 P.M.  However, County and City authorities may shorten or extend them further if necessary.

What Are the New Provisions That Employers Must Understand and Implement?

Significant changes were made to the prior Shelter In Place Orders.  With the heightened intensity of limiting coronavirus cases, the new Orders are more restrictive and call for more robust social distancing measures.  As a threshold matter, the Orders revise the previous definition of Essential Businesses, expanding the scope of some business categories and limiting the scope of others, particularly in construction.  Thus, all employers operating businesses that have been redefined must reevaluate whether their status as an Essential Business has changed.

The following businesses previously deemed Essential Businesses are no longer essential or are redefined so as to further limit operations:

  • Businesses that supply products needed for people to work from home are no longer an Essential Business. (Ironically, the Orders require employers to maximize the number of workers they have working from home, which will undoubtably increase the need for work-from-home supplies.)
  • Childcare facilities may only provide care to children or dependents of individuals working for Essential Businesses, providing essential government functions, or performing minimum basic operations for non-essential businesses. There are also further social distancing requirements placed on childcare facilities.  These changes may make it more difficult for workers, even those in Essential Businesses, to find childcare.
  • Gas stations, auto-supply, auto-repair businesses, and dealerships may operate only to repair vehicles or provide parts to repair vehicles.
  • Businesses are prohibited from operating facilities to manufacture non-essential products. Essential products remain defined as medicine, unprepared food, pet supplies, hygienic products, and household consumer products necessary for sanitation, habitability, or operation of residences.
  • Non-essential businesses may deliver existing inventory directly to residences or other businesses.
  • Arborists, landscapers, gardeners, and similar service professionals are Essential Businesses, but only to provide services necessary to maintain the safety and healthy operation of a business or residence. This means they can provide services like weed abatement for fire prevention.
  • The essential classification of construction has been significantly redefined and restricted to the following types of projects:
    • Projects immediately necessary to the maintenance, operation, or repair of essential infrastructure.
    • Projects associated with healthcare operations, but only if the construction is directly related to the COVID-19 response.
    • Affordable housing, including multi-unit or mixed-use development with at least 10% income restricted units. Other residential construction is not permitted.
    • Public works projects, but only if they are 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 those experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs.
    • Construction strictly necessary to ensure that a site that is shut down under this Order is safe and secure.
    • Construction or repair necessary to ensure that a residence or a building containing Essential Businesses is safe, sanitary, and habitable if that work cannot be reasonably delayed.

While many businesses have been further limited in their operations under the new definitions of Essential Businesses, the following businesses have been added to the list of Essential Businesses:

Service providers that enable residential transactions like real estate agents, escrow agents, notaries, and title companies.

  • Funeral home providers, mortuaries, cemeteries, and crematoriums.
  • Services to assist individuals in finding employment with Essential Businesses.
  • Moving services that facilitate moves allowed by the Order.
  • Rental car companies and rideshare services providing services necessary to Essential Activities.
  • Essential Infrastructure has been clarified to include solid waste facilities (including collection, removal, disposal, and processing facilities), cemeteries, mortuaries, and crematoriums.

The Orders provide detailed definitions of Essential Businesses that cannot be captured fully in summary format.  Thus, it is highly recommended that employers carefully review the definitions provided in the Orders before making a determination about its status as an Essential Business.  It is recommended that employers with any doubt seek clarification from their county health department or consult qualified legal counsel.

What Are the New and Revised Operating Procedures That Employers Must Follow?

All businesses that continue operations must follow the following operating procedures that include heightened stay at home and social distancing measures:

  • Essential Businesses must now maximize the number of employees who work from home and may only assign in-person work to those employees who cannot perform their job functions at home. Employers must review their current core function staffing and confirm that none of the work can be performed remotely.
  • Non-essential businesses may continue to perform “Minimum Basic Operations,” but cannot perform any of their other operations at the facility. Minimum Basic Operations means the minimum necessary activities to maintain and protect the value of the business’s inventory; process payroll and benefits; ensure security, safety, and sanitation; and delivery of existing inventory direct to residences or businesses.  These operations also include minimum necessary activities to facilitate work from home.
  • Businesses that include an Essential Business component at their facilities alongside non-essential components must, to the extent feasible, scale down their operations to the Essential Business component only. However, mixed retail businesses that are otherwise allowed to operate under this Order may continue to stock and sell non-essential products.
  • Social Distancing Requirements must be strictly complied with unless an exception exists. The exceptions largely pertain to healthcare providers, first responders, and other professions where the core function of the job requires close contact.
  • All businesses may continue to operate, if the entirety of the business can be operated from home.
  • All businesses that are allowed to operate under the Order must follow industry-specific guidance related to COVID-19, issued by the County or City Health Officer.

“Social Distance Protocol” Requirements for Essential Businesses With In-Person Operations

Essential Businesses are now required to prepare, post, and implement “Social Distancing Protocols” for each of their facilities no later than April 2, 2020 at 11:59 p.m. as follows:

  • Create written “Social Distancing Protocols.” Employers are required to use the template provided as Appendix A to the Orders to develop their individual Social Distancing Protocols. Appendix A provides a comprehensive list of actions employers should considered as they develop protocols designed to significantly reduce coronavirus transmissions amongst employees and customers.
  • Once created, employers must post the written Social Distancing Protocols at or near the entrance of the facility and it must be easily visible to employees and the public. We also recommend posting the written Social Distancing Protocols in areas frequented by employees, such as breakrooms, bathrooms, changing rooms, and the timeclock area.
  • Employers must provide a copy of the Social Distancing Protocols to each and every employee that works at the facility. To ensure employees receive these protocols, the employer should provide the employee a hard copy and an e-mail.
  • Employers are expected to prove they implemented the foregoing requirements to any authority enforcing the Order upon demand.
  • Employers should monitor CDC and local COVID-19 social distancing recommendations and requirements and update their Social Distancing Protocols as necessary.

Compliance With the New Shelter In Place Orders Is Important for Employers, Workers, Customers, and Is the Right Thing to Do

In these uncertain times, where the COVID-19 pandemic has upended many lives and businesses in such a rapid pace – rapid responses by governments are warranted in order to keep the virus under control.  Local, state and federal governments will continue to implement orders and rules that promote slowing the virus’ transmission.  Keeping up with quickly evolving laws and regulations is challenging, yet essential for employers.

It is important for Bay Area businesses and employers to fully understand and comply with the directives in the new Orders.  Violating these Orders may be deemed a misdemeanor punishable by fine, imprisonment, or both.  Moreover, violating these orders puts your employees, customers and business at an increased risk of infection.  Also, failure to comply could negatively impact the community efforts to curtail the spread of COVID-19, as suggested by scientific evidence.  While it is unclear how the Orders will be enforced, Sheriffs and Chiefs of Police are charged with ensuring compliance and enforcement.  As such, it is essential that businesses and employers understand the Orders and immediately take all required actions.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus (COVID-19) Insights page.

Given the speed with which COVID-19 has prompted a wide-range of legal action at the federal, state and local governmental levels, this blog article is not exhaustive.  Things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This post does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic.

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship.  Please contact your Sheppard Mullin attorney contact for additional information.*