Northern and Central California Counties Issue Important Updates to Shelter-in-Place Orders

As local jurisdictions attempt to slow the spread of the coronavirus (COVID-19) and “flatten the curve,” several Northern and Central California counties have updated their existing shelter-in-place orders to impose more restrictions on employers and company operations. Employers should immediately prepare for compliance with the new protocols, some of which take effect on April 2.

Six San Francisco Bay Area Counties Issue New Restrictions That Include Social Distancing Protocols

On March 16, six San Francisco Bay Area Counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—issued shelter-in-place orders that required residents to stay at their homes from March 17 through April 7, 2020. These orders only allowed residents to leave their homes to engage in “essential activities,” such as grocery shopping or seeking medical care, or to work at one of the listed “essential businesses.”

On March 31, these counties all issued updated orders that supersede the prior orders. They contain stricter requirements and extend the shelter-in-place directives through May 3, 2020. As part of these stricter requirements, the updated orders modify the list of essential businesses to exclude

• liquor stores that do not sell food;
• construction unless necessary for essential infrastructure, associated with healthcare operations, or to construct affordable housing, public works projects, shelters and temporary housing, projects for the homeless or disadvantaged, or projects necessary to ensure that existing construction sites are safe and secure and that essential businesses are safe, sanitary, and habitable;
• car washes or sales, though dealerships may remain open for auto-supply and repair;
• childcare facilities for nonessential workers

The updated orders add as essential businesses

• service providers that enable residential transactions;
• arborists, landscapers, gardeners only to the extent necessary to maintain habitability, sanitation, and operation - not for cosmetic purposes;
• funeral homes, mortuaries, cemeteries, and crematoriums;
• businesses that support other essential businesses - only to the extent that they support or supply essential businesses. This exemption does not permit sales to the general public;
• services to assist individuals find employment with essential businesses;
• certain commercial and residential moving services.

Additionally, the updated orders provide that businesses that include an essential business component at their facilities alongside nonessential components must, to the extent feasible, reduce their operations to the essential business component only.

Critically, these amended orders also require essential businesses to prepare and post, in a location easily viewable by the public and employees, a “Social Distancing Protocol” by no later than 11:59 pm on April 2, 2020. The Social Distancing Protocol must explain how the business is achieving the following, if applicable:

• 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 the essential business activity
• 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 employees, 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 employees and customers that they should avoid entering the facility if they have a cough or fever, maintain a minimum six-foot distance from one another, sneeze and cough into one’s elbow, and 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).

The orders state that the Social Distancing Protocol must be in substantially the form attached to each order; see the example from the County of San Francisco order. A copy must be provided to each employee performing work at the facility. All essential businesses must implement the Social Distancing Protocol and provide evidence of its implementation to any authority upon demand.

Failure to comply with the updated orders is a misdemeanor punishable by fine, imprisonment, or both.

Several Other Counties Now Require Daily Medical Screening of Employees

As of March 31, at least five counties in Central and Northern California—Fresno, Madera, Mariposa Mono, and Tuolumne—now mandate medical screenings daily of each employee reporting to the workplace. While these orders differ slightly in their requirements, all in one form or another require the following:

• Screening employees for febrile respiratory illness on a daily basis. This means monitoring each employee for “a new or worsening episode of either cough or shortness of breath, presenting with fever 100.4 degrees F or higher or chills.” (Madera County March 19, 2020 Health Officer’s Order to Monitor, Test, and Treat Febrile Respiratory Illness for Health Care Providers, Employers, Residents)
• Excluding all symptomatic employees from the workplace for at least seven days and requiring them to isolate at home

Practical Advice

Employers immediately should review the updated San Francisco Bay Area orders to ensure compliance with the essential business and minimum operations requirements. In addition, if not already done, employers in these six counties should immediately prepare and implement the required Social Distancing Protocols. Morgan Lewis has prepared template protocols and we are available to assist.

Further, with the rapid spread of COVID-19, we anticipate that other counties beyond the five Central and Northern California counties listed above likely will impose similar medical screening requirements. Employers should prepare to implement such screening to the extent not already done so.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Silicon Valley
Alicia J. Farquhar
Michael D. Schlemmer

Orange County
Daryl S. Landy

Washington, DC
Sharon P. Masling
Jonathan L. Snare