At noon today, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties extended their Shelter-In-Place Orders until at least May 1, 2020. The original Shelter-In-Place Orders were set to expire on April 7. The joint press release may be found here.

These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders now remain in effect through “at least May 1, 2020,” with the term “at least” indicating further extensions are likely.

The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of COVID-19 to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same. Information about California’s separate, state-wide Shelter-In-Place Order may be found here.

What Businesses are Covered by the Orders?

All businesses with a facility in the above-listed counties, except for “Essential Businesses,” are covered by the Orders. The Orders list 21 categories of Essential Businesses, ranging from healthcare operations and hardware stores to businesses that ship or deliver goods directly to residences. Employees of Essential Businesses may perform travel to/from and related to the Essential Business. The full list of Essential Businesses may be found here:

What are the Guidelines for Essential Businesses?

The Order strongly encourages Essential Businesses to remain open. To the greatest extent possible, Essential Businesses shall comply with the “Social Distancing Requirements.” Social Distancing Requirements include maintaining at least six-foot social distancing from other individuals, 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.

What if My Business Is Not On the List of “Essential” Businesses?

Generally, businesses that do not provide “essential” services must send workers home. All travel other than “essential travel” is prohibited. Businesses may continue operations that consist exclusively of employees or contractors performing activities at their own residences (i.e., working from home).  The Orders do, however, contain a limited exception for “Minimum Basic Operations.” Minimum Basic Operations includes the following, provided that employees comply with Social Distancing Requirements, to the extent possible, while carrying out such operations:

  • 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 employees of the business being able to continue to work remotely from their residences.

Are Impacted Employees Eligible For Unemployment Insurance?

If employees are forced to stay at home under the Orders and unable to work from home, or have their hours reduced, are furloughed or laid off, they may apply for unemployment insurance benefits through the California Employment Development Department. Employees are not eligible for unemployment insurance if they work from home (or are able to work but choose not to) while required to shelter in place under the orders. Individuals do not need to be sick to apply. California has waived the normal one-week waiting period, so an individual employee may collect unemployment insurance benefits for the first week he or she is out of work.

Further, it is possible that affected employees may be entitled to paid sick and family leave under the Families First Coronavirus Response Act (“FFCRA”), or other relief under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”). Information for employers regarding the FFCRA is located here, and information regarding CARES is located here.

Is there a penalty for noncompliance?

Per the orders, violation of or failure to comply is a misdemeanor punishable by fine, imprisonment or both. At the moment, the country sheriff’s departments and county chiefs of police are responsible for enforcement. Now that the Shelter-In-Place Orders have been in effect for several weeks, Bay Area sheriff’s departments have indicated they will start enforcing the Orders more strictly.

How Do I Get More Information?

This is an evolving area and changes on a daily basis. Please contact your Baker & McKenzie employment lawyer if you need assistance navigating these issues, or visit our Coronavirus Resource Center for more information. You can also click here for our most recent client alert on employee pay during COVID-19 leaves, furloughs, and closures.