Seven Bay Area Counties Release Virtually Identical “Shelter in Place of Residence” Orders That Will Affect Schools And Local Educational Agencies in Those Counties

03.17.2020, updated 04.01.20

UPDATE: Seven Bay Area Jurisdictions Adopt Stricter Health Orders – Effective March 31, 2020

In an effort to slow the spread of the coronavirus (COVID-19), the Chief Health Officers of Alameda, Contra Costa, Marin, San Mateo, San Francisco, and Santa Clara, Counties and the City of Berkeley each issued further Orders on March 31, 2020, extending the requirement that residents are to “shelter in their places of residence” through Sunday, May 3, 2020, unless rescinded or extended.  The Orders were issued with a joint press release, indicating the coordinated effort and response by all seven jurisdictions.  The Orders also specify that the statewide shelter order (Executive Order N-33-20, discussed in our prior Alert) was complementary to the prior Bay Area Orders, and that in the case of a conflict between these new Orders and any state order, the most restrictive provision controls.

These new Orders also include many new and tighter restrictions that may affect schools and local educational agencies (LEAs) in those jurisdictions, beyond the requirements of the original March 16, 2020, Orders.  This Alert highlights changes that are most significant for LEAs.  These new Orders became effective at 11:59 p.m. on March 31, 2020.

The Orders limit sports/activities and require closure of playgrounds and similar outdoor spaces with high-touch equipment or gathering areas as well as shared recreational facilities.  Specifically, the Orders:

• Require outdoor recreation activities at parks, beaches, and other open spaces to conform to Health Officer, government, or management restrictions on access and use in order to reduce crowding and virus transmission. These restrictions may include limits on the number of entrants, closure to vehicle access, or closure to all public access.
• Prohibit the use of recreational facilities that involve high-touch equipment or encourage gathering (like playgrounds and outdoor gym equipment as well as dog parks and picnic or barbeque areas). Such locations must be closed by signage and, if appropriate, physical barriers. 
• Prohibit the playing of sports involving shared equipment (such as balls, clubs, Frisbees, etc.) other than by members of the same household.
• Require that facilities for shared recreational activities (like golf courses, tennis courts, basketball courts, and pools) must be closed by signage and, if appropriate, physical barriers. These types of facilities may be repurposed to provide essential services to address COVID-19.

Schools and educational entities should consider whether they have outdoor facilities requiring implementation and enforcement of restrictions to reduce crowding and/or closure by signage and/or physical barriers.

All Essential Businesses, including schools and educational institutions, must now limit on-site employees and contractors to only those who cannot perform their job duties from home.  Any employees who can perform their job duties from home should be required to work remotely. 

The Orders continue to require that each governmental entity identify and designate the employees, volunteers, or contractors who will continue providing and carrying out any “Essential Governmental Functions,” including the hiring or retention of new employees or contractors to perform such functions.  We are aware that law enforcement agencies in some jurisdictions have stopped people who are out in public seeking evidence that the person is authorized to be away from home.  As such, we continue to advise that employees, volunteers, or contractors be provided written confirmation of this designation and that the designated individuals carry that document and their school employer identification as evidence of the propriety of their being away from their residences as providers of Essential Governmental Functions.

Additionally, child care facilities may now only provide child care to children whose parents/guardians are exempt from the Shelter in Place of Residence Orders such as those required to work on site at an Essential Business or provide an essential governmental function on site.

All Essential Businesses, including schools and educational institutions, are now required to:

• Post near the entrance a Social Distancing Protocol using the form attached to the Orders as Appendix A by no later than 11:59 p.m. on April 2, 2020. (Click this link for more information regarding the Social Distancing Protocol requirements.)
• Provide a copy of the Social Distancing Protocol to each employee performing work at the facility.
• Provide evidence of its implementation of the Social Distancing Protocol to any authority enforcing the Orders upon demand.

Educational entities that remain open, must implement all applicable measures listed on the Social Distancing Protocol, and be prepared to explain why any measure that is not implemented is not applicable.  Some of the measures that may apply to LEAs when providing food and/or school supplies include:

• Marking minimum six-foot increments where lines may form at a facility with signs directing visitors to use the marks to maintain distance.
• Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and employees.
• Providing for contactless payment systems or, if not feasible to do so, providing disinfectant for all payment stations to be used after each use.
• Posting a sign at the entrance of the facility informing all employees, parents, and students that they should:
  • Avoid entering the facility if they have a cough or fever;
  • Maintain a minimum six-foot distance from one another;
  • Sneeze and cough into cloth, tissue, or their elbow; and
  • Not shake hands or engage in any unnecessary physical contact.

For local educational entities performing construction, the Orders also have new restrictions regarding permitted construction.  Public works construction is permitted, but only for those projects “specifically designated as an Essential Governmental Function by the lead governmental agency.”  Otherwise, construction, generally and including public works, may be performed in the following limited circumstances:

• Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs.
• Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so.
• Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable, but only to the extent such construction or repair cannot reasonably be delayed.

In an effort to be broadly applicable, these Orders inadvertently muddle the categories of work familiar to public agencies, including construction – which includes alterations to existing facilities – and maintenance – which includes repairs under statutory definitions.  Public agencies are advised to work with legal counsel to carefully match the legal category of project with the right contracting authority, while looking at these new categories of permissible construction activity according to the nature of a particular project.

Projects commonly considered maintenance have also been restricted in the new Orders.  No “cosmetic” work is permitted under the new Orders, which allow only the following:

• Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the habitability, sanitation, and operation of residences and Essential Businesses, but not for cosmetic or other purposes.
• Arborists, landscapers, gardeners, and similar service professionals, but only to the limited extent necessary to maintain the habitability, sanitation, operation of businesses or residences, or the safety of residents, employees, or the public (such as fire safety or tree trimming to prevent a dangerous condition), and not for cosmetic or other purposes (such as upkeep).

For more detailed information on how these Orders impact construction activities, see our Alert here:  https://www.aalrr.com/newsroom-alerts-3664

Additionally, for any community college districts and LEAs with dormitories or employee housing, the new Orders prohibit residents from moving residences unless an already planned move cannot be delayed, or if necessary for safety or to preserve access to shelter.

These updated Orders will require action by all LEAs that are continuing to operate at any physical locations.  At minimum, LEAs must prepare, post, and implement the requisite Social Distancing Protocol by tomorrow, and many will have to make changes to or further restrict their ongoing operations.  We expect that the State and other local jurisdictions will also issue updated orders and guidance which may impact the applicable restrictions locally or statewide.  AALRR will continue to monitor changes as they develop.

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03.17.20

In an effort to slow the spread of the coronavirus (COVID-19), the Chief Health Officers of San Francisco, Santa Clara, San Mateo, Marin, Contra Costa, Alameda, and Santa Cruz Counties, as well as the City of Berkeley (which is within Alameda County), have each issued Orders requiring residents to “shelter in their places of residence” starting at 12:01 a.m. on March 17, 2020, through Tuesday, April 7, 2020, unless rescinded or extended.  Residents of the seven affected counties were given only twelve hours’ notice before the Order took effect.  In contrast to prior guidance from public officials, these are mandatory Orders which have the force of law.  Violation of the Orders is a misdemeanor punishable by a fine and/or jail time.

This Alert highlights the impact of these Orders on ongoing operations of school district, charter school, county office of education, community college district, and college/university employers (“school employers”).

First responders, emergency personnel, court personnel, and law enforcement personnel (presumably including sworn school police) are categorically exempt from the Orders.  All other persons within the seven affected counties may leave their residences only to provide or access “Essential Activities,” “Essential Governmental Functions,” or “Essential Businesses,” perform “Minimum Basic Operations,” or to perform operations and maintenance of “Essential Infrastructure.” – all as defined in the Orders. 

Of particular note for school employers:

1. The Orders exempt persons either performing or accessing “Essential Governmental Functions.”

Governmental entities, including school employers, must designate what constitute “Essential Governmental Functions,” which are not defined in the Orders.  This is a discretionary decision, and is left to each governmental entity.  We advise any such designation be made in writing.  Many school employers have already designated emergency authority to the Superintendent or senior administrator, which would make clear that this senior administrator is authorized to make these designations.  We recommend that those school employers that have not yet taken this step do so now in order to afford speed and agility in responding to the changing COVID-19 situation. 

Governmental entities, including school employers, must “identify and designate appropriate employees or contractors to continue providing and carrying out any Essential Governmental Functions.”  We advise written confirmation of this designation be provided to such employees or contractors, and that the employees/contractors carry that document and their school employer identification to establish their credentials as providers of Essential Governmental Functions as evidence of the propriety of their being away from their residences during the shelter in place Orders.  Moreover, the Orders require that the performance of Essential Governmental Functions be performed while observing “Social Distancing Requirements,” which are defined below.

2. The Orders also exempt “Essential Businesses,” including schools and colleges, which are “strongly encouraged to remain open.”

The term “Essential Businesses” includes “[e]ducational institutions – including public and private K-12 schools, colleges, and universities – for purposes of facilitating distance learning or performing essential functions.” (Emphasis added.)  The Orders also emphasize that social distancing of six feet of space between persons be maintained “to the greatest extent possible.”

The Orders further provide restrictions on how food services should be provided by educational institutions: “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.”  (Emphasis added.)

Childcare facilities must also be operated, to the extent possible, in compliance with new requirements specified in the Orders.  The childcare provider(s) shall assign each child to a group.  Each day, the children are to remain in the same group of 12 or fewer children with the same childcare provider(s).  Each group must be in a separate room.  Neither the children nor the childcare provider(s) may change groups or interact with persons in other groups.  Please note there are additional concerns relating to childcare – school employers are encouraged to consult with legal counsel prior to offering childcare services.

3. The Orders also exempt employees performing “Minimum Basic Operations.”

“Minimum Basic Operations” include the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, as well as the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

It is not clear that the exemption for “Minimum Basic Operations” applies to school employers.  Rather, school employers should consider whether payroll, human resources, information technology, and other similar functions, should, instead, be designated as “Essential Governmental Functions” and have that designation reduced to writing (see above).

4. The Order also allows for personnel to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure.”

For purposes of this Order, individuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure,” which includes “public works construction.”  We interpret the wording of the exemption to mean that three categories of work – operations, maintenance and construction – are exempt from the Order.

Public Contract Code § 22002(c) defines “public project” to include any “[c]onstruction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility.”  Our opinion is that all of these categories are encompassed within the activities allowed under the Order.

5. Individuals not otherwise exempt from the Orders may work from home. The Orders state that such employees may leave home to “obtain supplies they need to work from home.”

6. Individuals may also engage in “Essential Activities” and may additionally engage in “Essential Travel” in order to provide or access Essential Governmental Functions, Essential Businesses, Essential Activities, or Minimum Basic Operations. Of note, the Orders specifically allow for travel “to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services.”

7. The Orders require that these activities be performed in accordance with Social Distancing Requirements to the extent possible.

“Social Distancing Requirements,” as defined in the Orders, are to 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;
• Covering coughs or sneezes into the sleeve or elbow, not with the hands;
• Regularly cleaning high-touch surfaces, and
• Not shaking hands.

Social Distancing Requirements are not explicitly mentioned relative to childcare facilities and services, perhaps in recognition that it may be impossible as a practical matter to keep all of the children and workers six feet apart.  However, the Orders do include a general admonition that, to the extent feasible, Essential Businesses (which include childcare facilities) are to comply with Social Distancing Requirements as defined in the Orders.  We recommend that all Social Distancing Requirements be implemented in childcare settings to the greatest possible extent, and that childcare facilities and programs comply with the Centers for Disease Control and Prevention’s (CDC) Interim Guidance for Administrators of K-12 Schools and Childcare Programs in the United States to plan, prepare and respond to COVID-19 (https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html), including regarding cleaning and disinfecting school facilities.  More information on that guidance can be found in AALRR’s Alert specific to that topic at https://www.aalrr.com/newsroom-alerts-3614.

8. Even with the various exemptions, individuals who are at high risk of severe illness from COVID-19 as well as those who are sick are “urged” to say home to the extent possible, other than as needed to obtain medical care. More information on Governor Newsom’s call for home isolation for seniors 65 and over and persons with chronic conditions can be found here:  https://www.aalrr.com/newsroom-alerts-3613.

At this point in time, the Orders are limited to the seven counties referenced above.  However, California school employers outside of the affected counties are, nevertheless, encouraged to plan now in the event similar orders are issued in additional counties or on a statewide basis in the coming days.  In a Facebook Live stream on Monday night, Governor Newsom promised to take action “to bring the rest of California into alignment” with the eight Orders, though he did not expand upon how he would do so or specifically what would be included in any such measure.  Particular early steps would include delegating authority to the superintendent/senior administrator or designee to designate essential functions and personnel and commencing the process of identification and designation.  School employers should additionally consider whether services provided by contractors and support entities, rather than their own employees – such as professional services (including legal services) or continued public works operations, maintenance, and construction – are also essential governmental functions that should be included within these designations.

Additional information about the provision of distance learning, childcare services, and/or the provision of meals during COVID-19 school closure can be found in these earlier AALRR Alerts:  https://www.aalrr.com/newsroom-alerts-3611, https://www.aalrr.com/newsroom-alerts-3612, and https://www.aalrr.com/newsroom-alerts-3614

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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