Listen to this post

As previously reported, effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders (“SF Bay Area Orders”).  The SF Bay Area Orders require all individuals to shelter in place in their residences and businesses to cease all activities at facilities located within the listed counties 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 currently remain in effect through April 7. Although each of the six Bay Area counties, plus Santa Cruz, issued a separate Order, the substantive terms of the SF Bay Area Orders are the same.

Again, 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 Coronavirus (also known as COVID-19) to the maximum extent possible. To that end, we have seen local sheriff’s departments implementing the Orders against companies that do not fall squarely under an express exemption.

As of Wednesday, March 18, 2020, more California counties have issued Orders, bringing the total count to 11 out of 58 California counties.  The below includes an update on the SF Bay Area Orders and the latest counties to issue Orders.

What Businesses are Covered by the SF Bay Area Orders?
All businesses with a facility in San Francisco, Alameda, San Mateo, Santa Clara, Marin, and Contra Costa counties, except for “Essential Businesses,” are covered by the SF Bay Area 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 in each of the Orders, here:

What are the Guidelines for Essential Businesses?

The Orders strongly encourage 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?

Individuals who are laid off or subject to reduced hours due to Coronavirus restrictions may apply for unemployment benefits through the California Employment Development Department. Individuals do not need to be sick to apply. California has waived the normal one-week waiting period, so an employee may collect unemployment insurance benefits for the first week he or she is out of work.

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.  For instance the Alameda County Sheriff notified a manufacturing employer, via Twitter, that it was not an essential business as defined in the Alameda County Health Order.  The Alameda County Sheriff notified the business that it was limited to minimum basic operations per the Order.

What Are Other Counties Doing?

Following the initial SF Bay Area Orders, the counties of Santa Cruz, Monterey, San Benito, Sonoma, and Sacramento have issued similar orders or directives from county health officials.  The subsequent orders and directives contain different language, but are also designed to restrict movement to essential services and businesses, such as healthcare operations, grocery stores, and gas stations.

Orange County has issued a public health order that closes bars and other establishments that serve alcohol but not food, and restricts restaurants to pick-up, delivery, and drive thru services. This is not a Shelter in Place Order.

At this time, Napa and Solano counties have not issued similar mandates.

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.