On March 16, 2020, six counties in the San Francisco Bay Area, as well as the City of Berkeley, ordered all individuals living in those locations to shelter in place to slow the spread of COVID-19 (the "Orders"). Below is a summary of the Orders and some practical advice related to them.
- The Orders direct all businesses with a facility in Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara counties, as well as the City of Berkeley, to cease all activities at facilities located within those counties, except for "Minimum Basic Operations." This order excludes "Essential Businesses," a list of which is available below.
- Businesses can permit employees to work at home.
- Most businesses will not fall into the "Essential Business" exception.
- Those businesses that do fall within the definition of an "Essential Business" are strongly encouraged to remain open.
- Regardless of whether a business falls into the "Essential Business" exception, all businesses may have employees leave their residences and come to work for the purpose of performing "Minimum Basic Operations," which include the minimum necessary activities to (i) maintain the value of the business's inventory, ensure security, process payroll and employee benefits, or for related functions, and (ii) facilitate employees of the business being able to continue to work remotely from their residences.
- Employers should make good faith efforts to comply with the Orders in a manner that is consistent with its intent—which is to ensure that the maximum number of individuals 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.
- Determinations regarding whether a company falls within the "Essential Business" exception should be made in good faith, with full appreciation for the letter and spirit of the Orders, as well as the consequences of violating the Orders, including being guilty of a misdemeanor, which may include paying fines or imprisonment for a term of not more than 90 days, or by both.
- Even if a business determines that it falls within an exception, it should determine what parts of the business are essential and which are not. Specifically, the Orders state that individuals may leave their home only to provide "Essential Activities," which includes "[t]o 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."
- In any event, with respect to any part of the business that continues to operate, an employer must comply with "Social Distancing Requirements" as defined in the Orders, as well as any additional directions issued by an applicable county. This means 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, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands. But people at high risk of severe illness from COVID-19 and people who are sick are urged to stay in their residence to the extent possible except as necessary to seek medical care.
- Employers who are continuing operations because they fall within an "Essential Business" exception should consider providing employees some evidence to establish that they are commuting for such a purpose.
- Employers should be mindful that employees commuting to work on public transportation may have elevated fears associated with doing so, and employers may wish to reimburse employees who opt to use a ride sharing service to work.
- Employees who have their hours reduced for reasons related to COVID-19 (e.g., cannot work from home and are not required on-site for the Minimum Basic Operations) may be able to partially recover their wages by filing an unemployment insurance claim.
- Orders:
List of "Essential Businesses"
- 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 supply, 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 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 authorized 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. To the extent possible, childcare facilities must operate under the following mandatory conditions:
- Childcare must be carried out in stable groups of 12 or fewer ("stable" means that the same 12 or fewer children are in the same group each day).
- Children shall not change from one group to another.
- If more than one group of children is cared for at one facility, each group shall be in a separate Groups shall not mix with each other.
- Childcare providers shall remain solely with one group of children.
