Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In an effort to prevent the spread of COVID-19, seven Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Santa Cruz—issued “shelter in place” orders effective March 17 at 12:01 a.m. through April 7 at 11:59 a.m. Undoubtedly, these have a tremendous effect on employers.
These orders are essentially the same—persons can only leave their residence for the following (or be subject to a penalty):
- Essential Activities – These include performing work that provides essential products and services at an Essential Business or otherwise carrying out activities specifically permitted in the Orders, including Minimum Basic Operations.
- Essential Government Functions – These include services needed to ensure the continuing operation of the government agencies and provide for the health, safety, and welfare of the public.
- Essential Businesses – Discussed in more detail below.
Issues critical for employers include the following:
All businesses with facilities in these counties are required to cease all activities at their facilities, except for Minimum Basic Operations.
- This does not include work-from-home situations.
All businesses can continue Minimum Basic Operations. These include:
- The minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions.
- The minimum necessary activities to facilitate its employees being able to continue to work remotely from their residences.
Essential Businesses can continue their operations. Such businesses are defined as follows:
- Healthcare Operations (e.g., hospitals, clinics, dentists, pharmacies, pharmaceutical/biotech companies, healthcare facilities/supplies, home healthcare services/mental health providers, any related and/or ancillary healthcare services, veterinary care), and Essential Infrastructure (e.g., public works construction, housing construction, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, waste collection/removal, internet/telecommunications systems).
- Grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries and also sell other non-grocery products, and 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, and other necessities of life for economically disadvantaged or otherwise needy individuals;
- Newspapers, television, radio, and other media services;
- Gas stations and auto-supply, auto-repair, and related facilities;
- Banks and related financial institutions;
- Hardware stores;
- Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses;
- 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, dry cleaners, 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 takeaway 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;
- Businesses that supply products needed for people to work from home;
- Businesses that supply other essential businesses with the support or supplies necessary to operate;
- Businesses that ship or deliver groceries, food, goods or services directly to residences;
- Airlines, taxis, 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, or children;
- Residential facilities and shelters for seniors, adults, and children;
- Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
- Childcare facilities providing services that enable employees exempted in this Order to work as permitted. To the extent possible, childcare facilities must operate under specific mandatory conditions.
Essential Businesses (and non-essential businesses providing Minimum Basic Operations) shall comply with “Social Distancing” to the greatest extent feasible. Social Distancing includes:
- maintaining a six-foot distance from other individuals (both employees and members of the public, including customers standing in line);
- washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer;
- covering coughs or sneezes (into the sleeve or elbow, not hands);
- regularly cleaning high-touch surfaces; and
- not shaking hands.
For failure to comply with the Orders, employers (or any of their individual employees) may be found guilty of a misdemeanor, punishable by a fine of not less than $50 and not more than $1,000, or by imprisonment for a term of not more than 90 days, or both. See Cal. Health & Safety Code 120295.
- Presumably, this could be levied on each and every person who might be found on the premises. While prison sentences may be unlikely, sources indicate there will be vigorous enforcement given the seriousness of the situation.
Given the response of these jurisdictions to the unprecedented public health crisis, it is critical that employers narrowly construe the Essential Business exception in order to avoid potential criminal fines and penalties.
Links to the individual orders by county:
Link to Order