With special thanks to Teresa Michaud and Sara Pitt for contributing.

Revised Health Orders were handed down yesterday across the Bay Area (Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Berkeley Counties), intended to “clarify, strengthen, and extend” the terms of the prior shelter-in-place orders. Each supersedes its prior order, and provides that the county order is intended to implement more stringent county-level restrictions, to complement the “baseline statewide restrictions” set by Governor Newsom’s Executive Order. In addition, where a conflict exists between the county order and any state public health order, “the most restrictive provision controls,” unless the State Health Officer formally determines that a given provision is a public nuisance.

Under the new orders, “Essential Businesses” remain “strongly encouraged” to remain open, but should maximize the number of employees working from home, and may only require employees to work on-site if their duties cannot be performed from home.

Most importantly, the revised county orders require that businesses that include an essential component, along with non-essential components, must (to the extent feasible) scale down their operations to the essential business component only. In addition, “Essential Businesses must follow industry-specific guidance issued by the Health Officer related to COVID-19.”

Businesses that remain open must also prepare, post, and implement a Social Distancing Protocol at each facility where they are maintaining operations.  This protocol must be substantially in the form as the Appendix attached to the operative order and must be:

  • posted at or near the entrance of each facility, easily visible to the public and employees;
  • with a copy provided to each employee performing work at the facility.

In addition, businesses shall post signage at each public entrance of the facility to inform all employees and customers that they should:

  • avoid entering the facility if they have a cough or fever;
  • maintain a minimum six-foot distance from one another;
  • sneeze and cough into a cloth or tissue or, if not available, into one’s elbow; and
  • not shake hands or engage in any unnecessary physical contact.

Any operating business must also be able to provide evidence of its implementation of the protocol, upon demand from an enforcing officer. Further, the template protocol states businesses must “be prepared to explain why any measure that is not implemented is inapplicable to the business.”

As before, a violation of the Order is a misdemeanor – punishable by fine, imprisonment, or both.

The defined categories of essential businesses remain largely the same, with a few additions/revisions/removals:

Additions

    • Bicycle repair and supply shops.
    • Service providers that enable residential transactions (e.g. rentals, leases, and home sales), including real estate agents, escrow agents, notaries, and title companies, provided that appointments and other residential viewings must only occur virtually or, if a virtual viewing is not feasible, by appointment with no more than two visitors at a time residing within the same household or living unit and one individual showing the unit (except that in person visits are not allowed when the occupant is still residing in the residence).
    • Arborists, landscapers, gardeners, and similar service professionals, but only to the limited extent necessary to maintain the habitability, sanitation, operation or safety of businesses or residences, but not for cosmetic purposes.
    • Funeral home providers, etc., to the extent necessary to transport, process, and prepare remains.
    • Services to assist individuals in finding employment with Essential Businesses.
    • Moving services that facilitate residential or commercial moves that are allowed under the Order.

Revisions

    • The definition of “Healthcare Operations” has been revised to include exemption for COVID-19 testing locations, blood banks, and blood drives.
    • The definition of “Essential Infrastructure” has been revised to remove reference to construction, and to add cemeteries, mortuaries, and crematoriums.
    • The construction exemption has been revised to allow only 8 limited “types” of construction:
      • (1) Projects immediately necessary to the maintenance, operation or repair of Essential Infrastructure; (2) Projects associated with Healthcare Operations, provided that such construction is directly related to the COVID-19 response; (3) Affordable housing that is or will become income-restricted, including multi-unit or mixed use developments containing at least 10% income-restricted units; (4) Public works projects if specifically designated as an Essential Government Function by the lead government agency; (5) Shelters and temporary housing, but not including hotels or motels; (6) Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantages, and persons with special needs; (7) Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so; and (8) Construction or repair necessary to ensure that residences and buildings containing essential businesses are safe, sanitary or habitable to the extent such repair or construction cannot reasonably be delayed.
    • The auto-supply exemption includes clarification that it does not apply to in-person car sales or car washes at dealerships; but permits on-line sales of vehicles that are delivered to a residence or Essential Business.
    • Service providers (e.g. plumbers, electricians, exterminators) may only provide services to the extent necessary to maintain habitability, sanitation, and operation, but not for cosmetic services.
    • The exemption for businesses supplying Essential Businesses has been limited to include only services to the extent necessary to support or supply such businesses.
    • The Private Transportation exemption has been revised to include shared bicycles and scooters.
    • Home-based Care is also now permitted for pets.
    • The exemption for Professional Services, has been limited to apply only “when necessary to assist in compliance with non-elective, legally required activities.”

Removals

    • “Businesses that supply products needed for people to work from home.”