Orange County Health Officer Issues Order Immediately Prohibiting “All Public and Private Gatherings of Any Number of People,” Subject to Specified Exceptions: What Schools and Colleges Need to Know

03.17.2020

UPDATE (March 19, 2020)  On March 18, 2020, the Public Health Officer issued an Amended Order that supersedes that March 17, 2020, Order.  While the Amended Order still prohibits public or private “Gatherings,” as defined by the California Department of Public Health, and orders closure of bars, movie theaters, gyms, and health clubs, Amended Order clarifies that a number of activities are still permitted.  Of particular relevance to educational institutions, the Amended Order states in part as follows:

• “Except as provided herein, nothing in this document prohibits businesses or other entities from operating within Orange County. Businesses and entities should operate in accordance with social distancing guidelines issued by the California Department of Public Health.”
• “This Order does not prohibit activities such as attendance at regular school classes, going to work, or performing essential services. In accordance with state guidance, certain activities are essential to the functioning of our County and must continue.  Hence, with respect to the prohibition on Gatherings, this Order does not apply to… charitable food pantries and distributions, or to congregate living situations, including dormitories…”
• “Food and beverage establishments… are required to follow guidance released from the California Department of Public Health on March 16, 2020. All food shall be served by delivery, or through pick-up or drive-through.  For purposes of food delivery and pick-up, social distancing, defined as maintaining a six-foot separation per person for non-family members, shall be required.”
• In accordance with Interim Guidance for Businesses and Employers issued by the Centers for Disease Control and Prevention, employers shall not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.”
• The Amended Order continues in effect the “strong recommendations” made in the original Order for persons 65 years of age or older, or who have a chronic condition or compromised immune system, to remain at home consistent with guidance from the California Department of Public Health.
• The Amended Order also continues in effect the “strong recommendations” of the original Order for persons exhibiting mild to moderate symptoms of COVID-19 to self-isolate unless seeking medical care, and for all businesses to enact social distancing, increased sanitation standards, and make every effort to use telecommuting.

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On March 17, 2020 the Orange County Health Officer ordered an immediate ban on “all public and private gatherings of any number of people, including at places of work, outside a single household or living unit,” with exceptions for specified “Essential Activities.”  The Order, which is intended to help slow the spread of coronavirus (COVID-19), will remain in effect until March 31, 2020, unless revised or extended.  The Order states that it is enforceable by the Sheriff or chiefs of police and that violations are subject to fine, imprisonment, or both.

This alert will focus on provisions of the Order that are of particular relevance to operations of school district, charter school, county office of education, community college district, and college/university employers (“school employers”). 

The Order Permits Continued Operations of School Employers, Subject to Restrictions

The Order permits “Essential Activities” conducted with “Social Distancing” as defined below, but provides further that these Essential Activities “should only be conducted when they cannot be postponed or achieved without gathering, meaning that some other means of communication cannot be used to perform the Essential Activity.”

Of particular relevance to school employers, Essential Activities include the following:

• “All services needed to ensure the continuing operation of the government agencies and provide for the health, safety and welfare of the public.”
• First responders, emergency dispatchers, and law enforcement personnel. For those school employers that maintain a police force, this exception would apply to these operations.
• “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.”
• “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 takeaway 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 other essential businesses with support or supplies necessary to operate.”
• “Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandate activities.”
• “Childcare facilities providing services that enable employees who are exempted from the Order to work as permitted. To the extent possible, childcare facilities must operate under the following mandatory conditions: 1. Childcare must be carried out in stable groups.2. 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 room.  Groups shall not mix with each other.    Childcare providers shall remain solely with one group of children.”

The Order defines “Social Distancing” as “maintaining a six-foot separation from all persons except for family members.”  For permitted gatherings involving Essential Activities, “maintaining a six-foot separation of Social Distancing between persons, except family members, is recommended to the greatest extent possible.”

The Order further requires that “All businesses shall enact Social Distancing, increased sanitation standards, and shall make every effort to use telecommuting for its workforce.” 

Taking the above together, we interpret the order to permit a school employer to continue operations for the specific purposes identified above, as well as for the purpose of “performing essential functions,” provided that Social Distancing is maintained “to the greatest extent possible,” and provided further that the school employer “make[s] every effort to use telecommuting for its workforce.”  The Order does not define “essential functions” and we therefore interpret the Order to leave to individual school employers the determination of what functions they consider to be “essential,” giving due consideration to the needs and rights of students and to the public health.  We also interpret the Order to allow (subject to all other terms of the Order)  continued operation of professional services and other businesses that provide supplies or services that are necessary for continued school employer operations as permitted by the Order.

The Order Requires Businesses to Suspend Policies Requiring a Doctor’s Note for Approval of Sick Leave

The Order additionally requires that “All businesses shall suspend any policy or procedure requiring doctor verification for sick or other leave approval.”  The Order does not define “business” and so it is not immediately clear whether this requirement applies to public and/or private nonprofit educational institutions.  School employers are encouraged to consider suspension of any requirements for a doctor’s note, and to contact the health department with questions about the applicability of this provision to them.

The Order Recommends That Persons 65 and Older, or With Chronic Conditions or Compromised Immune Systems, Remain at Home

The Order makes a “strong recommendation” that persons who are 65 years of age or older, or who have a “serious chronic medical condition (like heart disease, lung disease, and diabetes),” or a compromised immune system, should self-isolate at home consistent with guidance from the California Department of Public Health.  The Governor gave a similar advisement on March 15, 2020.  Please refer to our alert of the same date on the Governor’s advisement for additional information regarding leave of absence considerations for employees who are subject to this advisement.

The Order Recommends Self-Isolation for Persons Exhibiting Symptoms of COVID-19

The order additionally states, “A strong recommendation is made for persons exhibiting mild to moderate symptoms of COVID-19 to self-isolate themselves in their place of residence unless seeking medical care.” 

Please refer to our previous alert, issued March 5, 2020, for further discussion of the authority of school employers to exclude from the workplace employees, students or others who appear to exhibit symptoms of COVID-19.

The foregoing is a summary only of selected provisions of the Order, and is not legal advice.  School employers should consult with legal counsel for any questions regarding their legal obligations under the Order.

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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