On Thursday evening, Governor Newsom issued an executive order (the “State Order”) that expanded the shelter-in-place orders already in place in each of the nine San Francisco Bay Area counties broadly directing all Californians to remain in their residences. The State Order is effective immediately.

The State Order directed Californians to practice social distancing and ordered them to remain in their residences “except as needed to maintain continuity of operations of the federal critical infrastructure sectors” as determined by the Department of Homeland Security, as described on this site: https://www.cisa.gov/critical-infrastructure-sectors.

Those sectors include:

The State Order also notes that the “supply chain must continue, and Californians must have access to such necessities as food, prescriptions, and health care.” Notably, the State Order does not have a sunset date nor does it reference whether it supersedes or otherwise preempts the county-level orders currently in place. As of Thursday night, guidance to businesses on the State’s website remained extremely limited.

The San Francisco Bay Area Orders

With two separate orders in place, companies with facilities in the nine Bay Area counties should still consider the requirements set forth in the county-level orders.

The county-level orders that covered most of the San Francisco Bay Area were set to sunset on on April 7, 2020, unless amended.[1] Like their statewide counterpart, the county orders refer to various provisions of California law that provide for criminal penalties for parties who violate the terms of the order. See, e.g., Cal. Health & Safety Code §120295.

Only businesses deemed “essential,” as specifically defined in the county orders, may continue operations at facilities located in the nine counties. Examples of Essential Businesses include, among others:

• Essential Infrastructure, including internet and telecommunications systems;
• Healthcare Operations, including pharmaceutical and biotechnology companies;
• Businesses that ship or deliver groceries, food, goods, or services directly to residences;
• Agriculture and food cultivation;
• Banks and related financial institutions;
• Newspapers, television, radio, and other media services;
• Airlines, taxis, and other private transportation providers providing transportation services necessary for essential activities, as defined;
• Businesses that supply products needed for people to work from home; and
• Grocery stores.

In addition to the exemption for the Essential Businesses, the county-level orders further exempt “[b]usinesses that supply other essential businesses with the support or supplies necessary to operate,” which has led to questions among local businesses as to what business functions and services would and would not be exempt. Various county health departments have attempted to provide guidance to affected parties through FAQ documents. These documents and feedback from health officers and county counsel have provided necessary clarification for health and medical companies, government contractors, food manufacturers, and others.

Businesses that are not deemed “essential” under the county-level order must reduce their operations within the counties’ jurisdiction to Minimum Basic Operations, defined as the “minimum necessary activities” to facilitate remote work, maintain the value of inventory, ensure security, process payroll, and related functions. The State Order does not explicitly reference what is permitted for businesses outside the critical infrastructure sectors.

Residents of counties under the orders are limited to leaving their residences only for “Essential Activities,” which include, among others:

• Obtaining health and medical services;
• Working at an Essential Business or to perform Minimum Basic Operations at a non-essential business;
• Obtaining necessary services and supplies for their residence, including food;
• Engaging in outdoor activities if compliance with social distancing requirements are met; and
• Caring for family members.

The State Order refers to CISA’s COVID-19 Memorandum, linked below, which provides detailed descriptions of what activities should be maintained

States and local governments across the United States have suggested that they will issue similar shelter-in-place orders, but these orders remain the most restrictive to date.

Employers in California should carefully consider whether their business operations are “essential” if they operate within one of the nine Bay Area counties and should further evaluate whether they fall into one of the critical infrastructure categories referenced in the State of California order. All businesses in California should be prepared to respond to inquiries regarding their compliance. Even if a business is permitted to continue on-site operations, all employers are encouraged to review their policies and practices to ensure that employees are provided with a safe work environment.

Links to each of the orders and the FAQs are available here:

State of California Order

Memorandum on the Identification of Essential Critical Infrastructure Workers During Covid-19 Response

San Francisco County Order and FAQs

Santa Clara County Order (San Jose/Palo Alto) and FAQs

San Mateo County Order (Menlo Park/Redwood City) and FAQs

Alameda County Order (Oakland/Pleasanton) and FAQs

Contra Costa County Order (Walnut Creek/San Ramon) and FAQs

Marin County Order and FAQs

Sonoma County Order and FAQs

Napa County Order and FAQs

Solano County Order

[1] https://www.sfdph.org/dph/alerts/files/HealthOrderC19-07-%20Shelter-in-Place.pdf

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