Governor Newsom Issues a Statewide “Stay Home” Order That Affects But Does Not Close Public Entity Employers

03.20.2020

Governor Newsom proclaimed a State of Emergency in response to the rapidly growing threat of the Coronavirus (“COVID-19”) on March 4, 2020.  In a drastic effort to slow the spread of COVID-19, Governor Newsom issued a statewide “Stay at Home” order (“Order”) last night, which “order[s] all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/critical-infrastructure-sectors.”  (https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.)  The Order became effective immediately last night and will remain in effect until further notice.  It is important to note that a violation of the Order is a misdemeanor punishable by a fine and/or jail time. 

Impact of Order on Public Entity Employers and Other Essential Employees and Contractors Performing Essential Functions

The Order does not require the closure of cities, counties, housing authorities, transit agencies, California administrative agencies, water districts, and other special districts (“public entity employers”).  The Order exempted “operations of… critical infrastructure sectors”, and cited to the Cybersecurity and Infrastructure Security Agency’s (“CISA”) webpage.

Government facilities, which include facilities that are owned or leased by federal, state, local, and tribal governments, are considered “critical infrastructure,” and must remain open.  (https://www.cisa.gov/government-facilities-sector.)  Other critical sectors identified by the federal government that must remain open include healthcare and public health, law enforcement, public safety, first responders, energy (i.e., the electricity industry), water and wastewater, transportation and logistics, and public works.  (https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.) Last night, CISA advised that workers in federal critical infrastructure sectors, including the ones listed above, “have a special responsibility to maintain [their] normal work schedule.”  (https://www.cisa.gov/sites/default/files/publications/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf, p. 1.)  The exemption for “federal critical infrastructure sectors” applies to “government facilities … as well as individuals who perform essential functions or possess tactical, operational, or strategic knowledge.”  (https://covid19.ca.gov/stay-home-except-for-essential-needs.)

Contractors and others who “otherwise facilitate authorized necessary activities” are also exempt from the Order.  As stated in the Order:

The supply chain must continue, and Californians must have access to such necessities as food, prescriptions, and health care.  When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.

(https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.)

The State of California’s official COVID-19 website provides further guidance concerning the impact on the public sector, as it states:

Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services.

(https://covid19.ca.gov/stay-home-except-for-essential-needs.)

Public Entity Employers' Response to Statewide Shelter in Place Order

In summary, public entity employers, as well as contractors and others who “otherwise facilitate authorized necessary activities” are likely exempt from the Order.  However, public entity employers would be well advised to implement several changes to address the challenges posed by the current COVID-19 crisis. 

As a best practice, public entity employers should assess whether it can transition sections of its workforce to work remotely. Our firm recommends that telecommuting arrangements be memorialized in writing, in order to clarify public entity employers’ expectations for employees and enforce rules governing remote work. Regardless of the criteria used in assessing whether a position qualifies for remote work, including whether a position is “essential”, public entity employers should adhere to a set of neutral, consistent factors to ensure that the process remains nondiscriminatory.

Public entity employers may also consider modifying employee work schedules to minimize the number of employees present at any given period of time at the worksite.  For instance, public entity employers could assign employees to work several alternating work shifts (e.g. work shift “A”, “B”, and “C”). 

Regardless of the measures taken, public entity employers must ensure that social distancing is practiced at all times, in which employees maintain a distance of at least six feet between each other.  (https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/ Gathering_Guidance_03.11.20.pdf.)

We expect further clarification from the Governor in coming days. Public entity employers are encouraged to reach out to AALRR for assistance regarding the impact of the Order on a particular agency.  Our firm can also provide assistance in preparing Telecommuting Agreements and Policies, reviewing leave of absence policies or arrangements in light of the recently passed House Resolution 6201, or other employment-related questions concerning COVID-19.