In a further attempt to "bend the curve" and to slow the spread of COVID-19 in California, Governor Gavin Newsom has announced that he is "pulling the emergency brake" on the state's reopening plans, and California has issued a new Regional Stay Home Order (Order). For at least the next several weeks (and through the holidays), the Order will significantly alter life for most Californians, and the state's employers must again take steps to ensure that they are operating in full compliance with the new Order and related guidance issued by the state's many counties.
Pursuant to the Order, California's Department of Health (CDPH) will evaluate the adult intensive care unit bed capacity for each of five separate geographic regions. When the CDPH has determined that the bed capacity for a region is less than 15 percent, then the terms of the Order will become effective 24 hours after that assessment.1 The Order will remain in effect for at least three weeks thereafter.
To date, conditions in two of the five regions, Southern California and San Joaquin Valley, have triggered the Order. These regions cover nearly 25 counties, and approximately half the state's population. In addition, while the entire Bay Area Region is not yet subject to the Order, five of its counties have adopted the terms of the Order on their own initiative.2 As a result, tens of millions of Californians, as well as employers in much of the state, are now covered by the Order.
The Order will have a profound effect on California's residents. Except as permitted by the terms of the Order, individuals living in the affected regions must stay home or at their place of residence "except as necessary to conduct activities associated with the operation, maintenance, or usage of critical infrastructure" (as discussed further below). Similarly, unless permitted by law, or the terms of the Order, gatherings with members of other households are either prohibited or restricted. Among other venues, bars, movie theaters, hair salons, barbershops, indoor and outdoor playgrounds, museums, and amusement parks must close. Restaurants will be prohibited from offering indoor or outdoor dining, and will only be permitted to offer take-out, pick-up, or delivery services.3 While retail establishments will be able to operate, the Order imposes strict capacity restrictions.
But while the Order's scope is admittedly far-reaching, its impact on day-to-day operations of most of California's employers is arguably less dramatic given how they have already been operating during the COVID-19 pandemic. This is particularly true for those doing business in some of California's most populated counties, e.g., Los Angeles, San Diego, and Santa Clara. Employers in these counties have already been operating subject to, and become accustomed to navigating, state and local public health stay-at-home orders. Similarly, many employers are now more familiar with usage of terms such as "essential businesses" or "essential critical infrastructure workers."
In short, most employers in the larger counties previously operating under existing state and local orders will generally continue to operate as they have been for months. Essential businesses can continue to operate, and their workers can continue to go to their worksites "where remote working is not possible." Such essential businesses, however, must operate subject to any modifications prescribed by applicable guidance the state has issued for each relevant sector. Other non-essential businesses (except most retail businesses) must close. While their employees may work remotely, only those employees necessary to maintain "minimum basic operations" may work on premises.
What Should California Employers Do in Response to California's New Order?
Although California's new statewide Order might at first glance suggest "business as usual," for many covered employers this may not be the case. For example, in response to the Order being triggered in a region, some counties in that region will simply issue an order or directive saying that the Order is now applicable to all county residents and employers. Other counties in that same region may issue orders that are even more restrictive than the Order. The health officer for the City and County of San Francisco, for example, has issued a rather lengthy order in response to the Order, whereas other Bay Area counties have to date not done so. Therefore, every employer should consult, understand, and ensure that it is operating in full compliance with, the Order itself as well as any other existing and new public health orders issued by the county in which it is doing business.
Moreover, even where a county elects not to issue a new order with requirements beyond those in the Order, employers should expect that in that county employers will continue to be subject to existing public health orders. Some employers may not be aware that a county's guidance may have changed in recent months such that employers must comply with new obligations. For example, some counties have adopted requirements that new social distancing protocols be adopted and submitted to the county in question, as well as to employees, contractors, or visitors. Some counties have adopted signage and other posting requirements. Others have adopted "metering system" requirements for public-facing establishments. Some counties have new ventilation requirements. Many counties now have increased reporting obligations in the event employees have contracted COVID-19, which may require reporting to workers and contractors that may have been exposed, county public health departments, OSHA, workers' compensation insurance carriers, etc.
In fact, and of particular importance to nearly all California employers, last month California's Department of Industrial Relations' Occupational Safety and Health Standards Board (Cal/OSHA) adopted an emergency temporary standard relating to COVID-19 hazards. Among the standard's requirements, employers must develop a written COVID-19 Prevention Program, promptly notify employees of potential exposure to COVID-19, require that exposed employees quarantine themselves with pay, and offer them testing at no cost. These requirements will remain in effect for at least 180 days subject to re-adoption.4
Employers should also be mindful that in addition to limiting the size of most private gatherings, the Order strongly discourages non-essential travel. For persons traveling from other states or countries (including state residents) the Order provides that they "should practice self-quarantine for 14 days after arrival." Moreover, many counties and cities have implemented travel requirements. Santa Clara County, for example, is requiring people to quarantine for 14 days upon their return to the county after traveling more than 150 miles. The City of Los Angeles is requiring persons (over the age of 16) traveling into that city from another state or county to submit an online traveler form upon arrival. Failure to submit the form is punishable by a fine of up to $500. Employers should be aware of any such travel restrictions and requirements before asking any employee to travel significant distances, and similarly, be aware of them as they relate to employees that may be traveling during the holidays. Indeed, employers should expect that co-employees required to work side-by-side with traveling colleagues will be well-aware of the employer's obligations and that they will ask employers to insist on compliance with such guidance or requirements.
In sum, especially during the current COVID-19 surge in California, employers should strive to stay abreast of a constantly evolving legal landscape. This includes following and understanding the Order, as well as existing and new county-specific orders. Employers must follow whichever order is more restrictive. In addition, employers should be aware of new legislation affecting the workplace due to the pandemic and should consult counsel as necessary.
For more information, or to address specific questions relating to this Alert, the Order and related county guidance, please contact Rico Rosales, Marina Tsatalis, Jason Storck, Rebecca Stuart, Matt Gorman, or any member of Wilson Sonsini's employment law group. For questions regarding how the Order affects your company's public disclosure obligations, or any related matters, please contact any member of Wilson Sonsini's public company representation practice. For more information about the Wilson Sonsini/SixFifty Return-to-Work Toolkit, please visit https://www.sixfifty.com/solutions/hr/returntowork/ or click here to schedule a demo.
[1] The five regions (and their respective counties) are as follows:
Northern California (Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama, Trinity);
Bay Area (Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma);
Greater Sacramento (Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo, Yuba);
San Joaquin Valley (Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare, Tuolumne); and
Southern California (Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura).
[2] On December 4, 2020, the Health Officers for the counties of Alameda, Contra Costa, Marin, San Francisco, and Santa Clara as well as the City of Berkeley, jointly announced that they will implement the State’s Regional Stay Home Order. Most of these orders are now in effect.
[3] The Order also addresses many other topics, including schools, outdoor recreation, campgrounds, retail activities (limited and crowds metered), shopping centers, religious worship, and political expression. Those activities, however, are beyond the scope of this Alert.
[4] To help companies comply quickly with Cal/OSHA’s new regulations, Wilson Sonsini collaborated with SixFifty to develop an automated compliance solution that can be deployed within 30 minutes. For more information, or to schedule a demo, click here.
