On March 31, 2020, the six Bay Area counties that previously issued the nation’s first Covid-19 shelter-in-place orders, amended and extended their prior orders to include stricter controls aimed to slow the spread of COVID-19. The new orders, which are now in effect in Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara counties (as well as the City of Berkeley) have a new end date of May 3, 2020 – a change from the prior end date of April 7, 2020. They also revise and narrow the scope of businesses deemed essential, and expressly require any employer with employees who are working on-site to develop a “Social Distancing Protocol” that must be posted in the form required by the orders. The new orders also acknowledge Governor Newsom’s statewide March 19, 2020 Executive Order N-33-20, but explain they are, “in certain respects more stringent” than the statewide order in order to address “the particular facts and circumstances” in the county and in the Bay Area. Accordingly, they explicitly state, “Where a conflict exists between this Order and any state public health order related to the COVID-19 pandemic, the most restrictive provision controls.”
Social Distancing Protocols by essential businesses must be posted by 11:59 p.m. on April 2, 2020. Essential businesses also must provide a copy of their Social Distancing Protocol to each employee performing essential work. As applicable, the Social Distancing Protocol must explain how the business is limiting the number of people who can enter at any one time to ensure they can “easily maintain a minimum six-foot distance from one another at all times,” except as required to complete essential business activity. The protocol must further explain how the business is providing sanitation items such as hand sanitizer, soap and effective disinfectant; providing for contactless payment systems; regulating lines to maintain six feet between individuals; and regularly disinfecting high touch surfaces.
The new orders also direct all essential businesses to “maximize the number of employees who can work from home,” and confirm that essential businesses “may only assign those employees who cannot perform their job duties from home to work outside the home.”
With respect to the scope of businesses deemed essential, the new orders confirm most construction work, including both residential and commercial, is not essential, with limited exceptions including work on essential infrastructure or health care operations, affordable housing, homeless shelters, and certain public works projects. They also clarify that although businesses that supply other essential businesses with the support and supplies necessary to operate are still deemed essential, it is only to the extent they support or supply other essential businesses (e.g., these businesses cannot engage in sales to the general public from retail storefronts). The orders also make explicit that volunteers – in addition to workers – at healthcare operations (as defined by the order) are deemed essential. They also include as essential funeral homes and cemeteries, moving companies, rental car companies and rideshare services.
The new orders also include stricter restrictions regarding outdoor activity and recreation. Although outdoor recreation is still permitted, social distancing requirements – including maintaining at least six feet from individuals who are not part of the same household – must be followed. Additionally, recreation areas with “high-touch equipment or that encourage gathering,” including playgrounds, dog parks, and picnic areas, are ordered closed to the public. The orders also prohibit the use of shared facilities for recreational activities, such as golf courses, tennis courts, gyms or basketball courts, and make clear that only members of the same household may engage in sports or activities that include the use of shared equipment.
We will continue to monitor developments in this area. Stay tuned for updates.