Shelter-in-Place Update: It’s Essentially Not Business As Usual For Bay Area Essential Businesses

Some businesses and individuals weren’t getting the message. So, Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo counties and the City of Berkeley issued an updated Shelter in Place Order on March 31, 2020 (the “Order”).  This Order supersedes the March 16, 2020 shelter in place order directing all individuals to shelter in place (“Prior Shelter Order”). The Order also clarifies, strengthens, and extends certain terms of the Prior Shelter Order to increase social distancing and reduce person-to-person contact in order to further slow transmission of Novel Coronavirus Disease 2019 (“COVID-19”).

County health officials will be relying on the County’s respective sheriffs and chiefs of police to enforce the Order. Violation of any provision of the Order constitutes an imminent threat to public health, is deemed a public nuisance, and is punishable by fine, imprisonment, or both. (Not to mention that workers, as widely reported in the media, at certain businesses like Amazon and Whole Foods have shown that they will very publicly protest conditions that they believe are unsafe – another potential ground for liability.) The Order will remain in effect until 11:59 pm on May 3, 2020 or until it is extended, rescinded, suspended, or amended in writing.

You can read the full text of the Order here, but for Bay Area businesses, here’s what you need to know:

• All Essential Businesses are “strongly encouraged to remain open.” Order, Section 5. (If you don’t know if you are an Essential Business, review Section 13 of the Order.)
• Your employees are allowed to travel to your facility to perform work activities authorized by the Order, which is defined as an Essential Activity. Order, Section 13(a)(iv) and 13(i).
• However, “Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.” Order, Section 5.

Bay Area businesses, thus, can continue to operate under certain strict restrictions.

First, to the extent your employees can perform their job functions from home, they must do so. “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.” Order, Section 5. In other words, if they can, employees must stay home and work from there.

Second, each business must prepare, post and implement a “Social Distancing Protocol” at their facility or facilities, as applicable, by no later than 11:59 pm on April 2, 2020. Evidence of the protocol must be presented on demand to any authority enforcing the Order. Order, Section 13(h). Details regarding what constitutes an appropriate policy are set forth in subsection (h) of the Order, and a form policy is attached as Appendix A to the Order. Be sure to follow this guidance, which lays out the minimum elements that you need for an appropriate Social Distancing Protocol. (Go to the Order and scroll down to Appendix A.)

Third, “Social Distancing Requirements” are still in effect. Maintain a minimum of six feet between employees, require employees to frequently wash their hands with soap and water for at least 20 seconds or use hand sanitizer, and cover coughs and sneezes with tissue, fabric (or, as a last resort, sleeves and elbows). Above all else, no employee should leave his or her home if they are feeling sick, and certainly not if they have a fever or cough.

Should you have any questions regarding whether your company is an Essential Business, your company’s preparation of a Social Distancing Protocol, or compliance with the Order, Wendel Rosen’s attorneys are here to assist you.