Bay Area Food Manufacturers Can Comply with the Shelter in Place Order and Operate

Wendel Rosen LLP

Wendel Rosen LLP

Photo by Claudio Schwarz on Unsplash

The Shelter in Place Order, which was jointly issued by Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo counties and the City of Berkeley, is a very necessary step in addressing the health crisis presented by the COVID-19 Coronavirus pandemic. While the Order is very detailed, a few food manufacturers have contacted me uncertain as to what the Order means for their operations. Undeniably, the provision of food is essential, especially since we do not know how long we will be dealing with this challenging pandemic. However, like anything legal in nature such as the instant Shelter in Place Order, the devil is in the details. Here’s my take on whether the Order allows food manufacturers to remain in operation at this time:

First, the Order defines “Essential Businesses.” There are various categories, several of which include those in the general food supply chain. For instance, businesses that are in “[f]ood cultivation, including farming, livestock, and fishing,” (Order, Sec. 10(f)(iii)); that “provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals,” (Order, Section 10(f)(iv)); “[r]estaurants and other facilities that prepare and serve food, but only for delivery or carry out,” which includes schools (Order, Section 10(f)(xiii); and, “[b]usinesses that ship or deliver groceries, food, goods or services directly to residences,” (Order, Section 10(f)(xvi).

Second, retail food businesses (ex. grocery stores, farmers markets, convenience stores, etc.) are allowed to remain open. Order, Sec. 10(f)(ii). Obviously, with limited exceptions (ex. farmers markets) those businesses don’t make the products that they sell, so you need food manufacturers. Unfortunately the Order does not directly address this part of the food supply chain. Indirectly, though, it does: “Businesses that supply other Essential Businesses with the support or supplies necessary to operate,” are allowed to remain open. Order, Sec. 10(f)(xv).

Third, while food manufacturers may continue to operate, the Order places restrictions on such operations. “All Essential Businesses are strongly encouraged to remain open. To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements….” Order, Sec. 3. Social distancing requirements include:

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

Employees at Essential Businesses may leave their home to “perform work providing essential products and services at an Essential Business or to otherwise carry out activities specifically permitted in this Order, including Minimum Basic Operations.” Order, Sec. 10(a)(iv). “Minimum Basic Operations” are the “minimum necessary activities” to: (1) maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, or (2) to facilitate employees of the business being able to continue to work remotely from their residences.

Finally, it is not business as usual. The Order is to be interpreted with nothing but the public health in mind. The Order is expressly intended “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the maximum extent possible.” Order, Sec. 1. Violations of the Order are classified as misdemeanors punishable by fine, imprisonment, or both. (California Health and Safety Code § 120295, et seq.)

Accordingly, the takeaways from the Order, as I read it, are that food manufacturers may remain open with certain safety mechanisms in place. To the extent that employees can work from home and perform their functions, they should do so. To the extent that an employee cannot work from home (ex. a line operator), they can work at the food facility, but only to the extent that they have a six-foot zone of safety around themselves, they practice recommended hygiene protocols, and they do not come into physical contact with their co-workers. Failure to faithfully comply with the Order will undoubtedly be dealt with severely should the offender’s actions and/or failures to act be discovered. Discovery can happen by law enforcement and regulators, of course, but the most likely source would be from a business’ own employees. Everyone is concerned, and if you ask someone to come to work while everyone else is sheltering in place, I would expect that those employees will be threatened and alarmed by any conduct that they perceive as unsafe. Now is certainly not the time to put profit over people.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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