Previously, we discussed the implementation of "shelter in place orders" in the Bay Area that applied additional and severe restrictions on businesses and non-essential personal activities (discussed in detail here).
On April 29, 2020, as part of a plan to ease restrictions for the purpose of setting the stage for "gradual resumption of activity," including non-essential personal activities, six Bay Area counties and the City of Berkeley issued new "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)
The new orders serve three purposes. First, they expand the timeframe of the "shelter in place" requirements. The prior orders took effect on March 31, 2020, and were set to end on May 3, 2020.The new orders will be put into effect on May 3, 2020 and will run through May 31, 2020, adding an additional 28 days to the isolation period.
Second, as discussed in more detail below, the new orders ease certain restrictions, permit the re-opening of certain "outdoor" businesses, and allow some non-essential personal activities that were not allowed in prior orders.
Third, in addition to identifying other essential businesses, the new orders mandate and clarify several measures that must be implemented for essential businesses to continue operations.
The orders for each county and/or city are virtually identical except a few minor differences specific to certain counties.
Ease of Restrictions and Changes to Prior Orders
While the new orders maintain the same basic structure and restrictions implemented in prior orders, there are a few changes that either clarify and/or incorporate prior health orders/safety protocols issued by various Bay Area Counties.
- Use of Certain Outdoor Recreational Facilities:
The new orders allow use of shared outdoor recreational facilities that do not involve high-touch equipment and/or gathering. The prior orders had shut down all "shared facilities for recreational activities outside of residences." The new orders permit the reopening of some facilities, including "golf courses, skate parks, and athletic fields," so long as social distancing requirements are followed.
- Businesses Must Update or Create Social Distancing Protocol to Reflect New Requirements:
The new orders require all businesses operating facilities in the counties to prepare and post a "Social Distancing Protocol." The "Social Distancing Protocol" must be posted at or near the entrance of the facility in a place that is easily viewable by the public, and a copy must be given to each individual performing work in the facility.
The "Social Distancing Protocol" must explain how the facility is achieving the following:
- Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete Essential Business activity;
- Requiring face coverings to be worn by all persons entering the facility, other than those exempted from face covering requirements (e.g. young children);
- Where lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing;
- Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and personnel, and in locations where there is high-frequency employee interaction with members of the public (e.g. cashiers);
- Providing for contactless payment systems or, if not feasible to do so, providing for disinfecting all payment portals, pens, and styluses after each use;
- Regularly disinfecting other high-touch surfaces;
- Posting a sign at the entrance of the facility informing all personnel and customers that they should: avoid entering the facility if they have any COVID-19 symptoms; maintain a minimum six-foot distance from one another; sneeze and cough into one's elbow; not shake hands or engage in any unnecessary physical contact; and
- Any additional social distancing measures being implemented (see the Centers for Disease Control and Prevention's guidance here).
The orders provide a standard form "Social Distancing Protocol" that can be used, distributed, and implemented.
Construction Activities Must Comply with Construction Project Safety Protocols (as opposed to the Social Distancing Protocol):
The new orders institute highly specific "Construction Safety Protocols" for all construction in the various counties. "Construction Safety Protocols" are upwards of five pages long and, as such, beyond the scope of this article. It is recommended that any company operating in the construction industry should immediately review and implement the protocols.
Addition of "Outdoor Business" Category
Because certain outdoor businesses carry a lower risk of transmission of the virus, the new orders allow certain "Outdoor Businesses" to resume operations starting on May 3, 2020.
The orders define the term "Outdoor Businesses" as businesses that normally operated primarily outdoors prior to March 16, 2020, and "where there is an ability to fully maintain social distancing of at least six feet between all persons."
The following are listed as "Outdoor Businesses":
- Businesses primarily operated outdoors, such as wholesale and retail plant nurseries, agricultural operations, and garden centers.
- Service providers that primarily provide outdoor services, such as landscaping and gardening services, and environmental site remediation.
Further, for clarification purposes, the orders emphasize that "Outdoor Businesses" do not include outdoor restaurants, cafes, or bars.
Residents of the various counties may visit "Outside Businesses" to perform work or to obtain goods, services, or supplies.
Clarification 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 added clarification to 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. For clarity, this section does not permit businesses to provide curbside pickup to customers.
- The minimum necessary activities to facilitate owners, personnel, 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.
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." Notably, the changes concern construction projects and childcare establishments. Various executive summaries for the changes in the order also state that "commercial as well as residential [real estate] transactions are allowed to fully resume so long as continued restrictions on in-person viewings and appointments are followed." The new list includes the following as "essential businesses" (categories with major changes from prior orders in bold):
- 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 as
permitted under the State Shelter Order and only pursuant to the
Construction Safety Protocols listed in the Appendices and/or
incorporated into the Order by reference, except if other protocols
are specified by the Health Officer;
- San Francisco County's Appendices are available here. (at the end of the Order).
- Alameda County's Appendices are available here.
- San Mateo County's Appendices are available here. (at the end of the Order)
- Santa Clara County's Appendices are available here.
- Marin County's Appendices are available here.
- Contra Costa County's Appendices are available here.
- City of Berkeley County's Appendices are available here.
- 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. 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;
- 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 these orders 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 these orders;
- 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 these orders;
- Childcare establishments,
summer camps, and other education or recreational institutions or
programs providing care or supervision for children of all ages
that enable owners, employees, volunteers, and contractors for
Essential Businesses, Essential Governmental Functions, Outdoor
Businesses, or Minimum Basic Operations to work as allowed under
these orders. To the extent possible, these operations must comply
with the following conditions:
- They must be carried out in stable groups of 12 or fewer children ("stable" means that the same 12 or fewer children are in the same group each day).
- Children shall not change from one group to another.
- If more than one group of children is at one facility, each group shall be in a separate room. Groups shall not mix with each other.
- Providers or educators shall remain solely with one group of children.
Notably, the new orders now allow all construction projects as long as various safety protocols are followed as part of the orders. Further, the new orders allow childcare establishments, summer camps, and educational and recreational programs as long as certain protocols are followed.
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 (including businesses that perform minimum basic operations) in these counties that operate a facility should immediately update and/or implement the social distancing protocol identified above.
- Employers that are currently not yet allowed to operate should also begin the process of implementing social distancing and related measures in their facilities so that they are ready to safely reopen when allowed.
- Employers should continue to maximize the number of employees that work from home.
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, Managing Partner of our San Francisco Bay Area office at firstname.lastname@example.org and Noah M. Woo, senior associate in our San Francisco Bay Area office at email@example.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.
FordHarrison is closely monitoring the spread of Coronavirus and associated federal and state legislation 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 and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on Coronavirus and workplace-related provisions of the CARES Act, 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 or CARES Act attorney, please contact firstname.lastname@example.org.
Originally published May 8, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.