By: Chantelle C. Egan, Jaclyn A. Gross, and Timothy M. Hoppe

Seyfarth Synopsis.  Eight California counties—San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Marin, Sonoma, and Santa Cruz—along with the City of Berkeley, issued revised shelter-in-place orders on March 31st. The new orders add clarifying language around essential businesses and prohibited activities, as well as create a new affirmative obligation for employers to create and post a Social Distancing Protocol.

Revised County and City Orders.

Citing the success of local shelter-in-place orders in helping flatten the curve of COVID-19 cases, Bay Area officials in the Counties of San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Marin, Sonoma, and Santa Cruz, along with the City of Berkeley (which has its own public health department), signed updated orders extending the shelter-in-place through at least May 3, 2020.

The orders, which went in effect at 11:59 p.m. yesterday, March 31, are all substantively the same. Like the previous orders, the revised orders require people to stay at home except for doing essential activities, such as grocery shopping, and non-essential businesses will remain closed. However, the updated orders also add clarifying language around essential businesses and prohibited activities as well as new obligations for employers.

Updates and New Obligations for Essential Businesses.

The updated orders expanded the list of essential businesses to include:

  • Service providers that enable residential transactions (notaries, title companies, realtors, etc.);
  • Funeral homes and cemeteries; and
  • Moving companies, rental car companies, and rideshare services that specifically enable essential activities.

That said, all essential businesses that continue to operate facilities must scale down operations to their essential components only.

Perhaps most important for employers operating essential businesses, however, is the requirement to develop, post, and distribute a “Social Distancing Protocol” no later than midnight this Thursday, April 2, 2020. The Protocol must be substantially the same as Appendix A attached to the orders, and must be posted in facilities frequented by employees or the public. It must be displayed at or near the entrance of the relevant facility and be easily viewable. A copy of the Protocol must also be provided to each employee performing work at the facility.  Santa Cruz County is the only order not officially requiring implementation of a Social Distancing Protocol, but essential businesses are still encouraged to do so.

Guidance Regarding Prohibited Activities.

The new order not only focuses on what the community must or can do, but also what is prohibited.

  • Most construction—residential and commercial—is prohibited. However, there are exceptions for projects to help keep people safe and housed, including:

–  Health care projects directly related to addressing the pandemic;

–  Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure;

–  Construction of shelters and temporary housing (excluding hotels and motels);

–  Affordable housing and multi-unit or mixed-use developments containing at least 10% income-restricted units;

–  Public works projects designated as essential by the lead governmental agency;

–  Projects necessary to provide critical services to certain vulnerable individuals;

–  Construction necessary to ensure existing construction sites that must be shut down under the orders are left in a safe and secure manner, but only to the extent necessary to do so; and

–  Construction or repair necessary to ensure residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed.

  • Use of playgrounds, dog parks, public picnic areas, and similar recreational areas is prohibited. These areas must be closed to public use.
  • Use of shared public recreational facilities such as golf courses, tennis and basketball courts, pools, and rock walls is prohibited. These facilities must be closed for recreational use.
  • Sports requiring people to share a ball or other equipment must be limited to people in the same household.
  • Funerals limited to no more than 10 people attending.

We are following developments closely, so stay tuned for updates as they come.