As employers may be aware, six counties in the Bay Area (San Francisco, San Mateo, Santa Clara, Alameda, Marin, and Contra Costa) have issued extremely restrictive ‘Shelter in Place’ orders, which place heavy restrictions on travel, activities, and business. In short, individuals are required to stay at home unless they leave for an approved reason, and non-essential businesses must cease most operations.

The Orders took effect on 17 March 17, 2020 and remain in effect until 7 April 2020.

Below is a summary of the main points of the Orders.

Impacted counties 

San Francisco, San Mateo, Santa Clara, Marin, Alameda, and Contra Costa counties have all issued nearly identical so-called ‘Shelter In Place’ orders (the ‘Orders’). San Mateo and Contra Costa counties have posted FAQs regarding these orders, which are available here and here.

Penalty

A violation of the Orders is a misdemeanour punishable by a fine, imprisonment, or both.

Covered individuals and businesses 

The Orders are extremely wide in scope and apply to virtually every individual and business in the respective counties. The following emergency personnel are ‘categorically exempt’ from the Orders: ‘first responders, emergency management personnel, emergency dispatchers, court personnel, and law enforcement personnel, and others who need to perform essential services.’ See Order, paragraph 10(d). Further, as discussed below, specific ‘Essential Businesses’ are ‘encouraged to remain open.’ See Order, paragraph 3.

The Orders apply to any businesses with a facility in the county. See Order, paragraph 3. This includes ‘any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function they perform, or its corporate or entity structure.’ See Order, paragraph 10(e).

Requirements 

The Orders will have a dramatic effect on individuals and employers and will impact, restrict, and/or prohibit many aspects of normal life and work. Overall, the Orders generally require residents to stay at their place of residence and restrict activities, travel, and social gatherings. As for employers, below is a summary of the provisions that will have a direct impact on most employers.

Essential/Non-Essential Businesses 

As they relate to employers, there are two different mandates depending whether an employer is considered an ‘Essential Business’. Basically, ‘Essential Businesses’ can remain open, and ‘Non-Essential Business’ will largely be required to close or go remote.

‘Essential Businesses’ are ‘strongly encouraged’ to remain open, and employees are permitted to travel to/from work. Essential Businesses are defined as:

• Healthcare Operations and Essential Infrastructure.
• Grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products). This includes stores that sell groceries and also sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operation of residences.
• Food cultivation, including farming, livestock, and fishing.
• Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals.
• Newspapers, television, radio, and other media services.
• Gas stations and auto-supply, auto-repair, and related facilities.
• Banks and related financial institutions.
• Hardware stores;
• Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses;
• Businesses providing mailing and shipping services, including post office boxes;
• Educational institutions, including public and private K-12 schools, colleges, and universities for the purposes of facilitating distance learning or performing essential functions, provided that social distancing of six-feet per person is maintained to the greatest extent possible.
• Laundromats, drycleaners, and laundry service providers;
• Restaurants and other facilities that prepare and serve food, but only for delivery or carry out. Schools and other entities that typically provide free food services to students or members of the public may continue to do so under this Order on the condition that the food is provided to students or members of the public on a pick-up and take-away basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site.
• Businesses that supply products needed for people to work from home.
• Businesses that supply other essential businesses with the support or supplies necessary to operate.
• Businesses that ship or deliver groceries, food, goods or services directly to residences.
• Airlines, taxis, and other private transportation providers providing transportation services necessary for Essential Activities and other purposes expressly authorised in this Order.
• Home-based care for seniors, adults, or children.
• Residential facilities and shelters for seniors, adults, and children.
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
• Childcare facilities providing services that enable employees exempted in this Order to work as permitted.

‘Non-Essential Businesses’ must cease all operations in the above six counties (San Francisco, San Mateo, Santa Clara, Alameda, Marin, and Contra Costa) except for the limited exceptions set out below.

Remote Work Permitted 

Non-essential businesses are permitted to ‘continue operations consisting exclusively of employees or contractors performing activities at their own residences (i.e., working from home).’ See Order, paragraph 3.

Minimum Basic Operations Permitted 

Businesses are permitted to maintain ‘Minimum Basic Operations,’ defined as:

• the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions (see Order, paragraph 10(g)(i));
• the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences (See Order, paragraph 10(g)(ii)).

Social Distancing Requirements 

For all permitted activities, individuals and businesses are required to implement ‘Social Distancing Requirements,’ which include the following ‘at all times reasonably possible.’

• maintaining at least six-feet social distancing from other individuals;
• washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitiser;
• covering coughs or sneezes (into the sleeve or elbow, not hands),
• regularly cleaning high-touch surfaces; and
• not shaking hands.

Recommendations

We recommend the following for employers in these counties:

• First, all employers in these counties should determine whether they are an essential or non-essential business.
• Employers that determine they are non-essential should shut down all operations apart from remote work and the minimum basic operations.
• All employers in the counties should implement the ‘Social Distancing Requirements’ listed above and ensure they are enforced.