New “Shelter-at-Home” Orders Issued by Seven Bay Area Counties Extend Restrictions through May 3 and Include New and Time-Sensitive “Social Distancing Protocol” Requirements for Essential Businesses

04.01.2020

Under new Health Officer Orders issued by seven major Bay Area Counties on March 31, 2020, businesses deemed “Essential Businesses” are now each required to prepare and post a “Social Distancing Protocol”.  This requirement must be met by April 2, 2020.  Businesses must be able to prove their compliance to authorities upon demand. 

The New Orders, Generally

Yesterday, March 31, 2020, Health Officers in seven Bay Area counties issued new orders (the “Orders”) that extended “shelter-at-home” requirements through May 3, 2020.  The counties of San Francisco, Santa Clara, San Mateo, Alameda, Marin, Contra Costa, and Santa Cruz all issued the Orders providing the same restrictions. 

The Orders extend the requirement for all non-essential businesses to “cease all activities at facilities located within” each County through May 3, 2020, except those business that qualify as “Essential Businesses” under the Orders.  Essential Businesses are listed at length in the Orders, subject to certain limitations as described in our earlier alerts, and are still “strongly encouraged to remain open,” provided they implement and practice social distancing.

In particular, under the new Orders, “all Essential Businesses must prepare and post by no later than 11:59 p.m. on April 2, 2020 a ‘Social Distancing Protocol’ for each of their facilities in the County frequented by the public or employees,” the specifics of which are discussed at length in the next section.

If a business is not an Essential Business, it can still perform activities needed to perform its “Minimum Basic Operations.”  This is defined specifically in the Orders, but generally means the minimum of activities needed for basic security, safety, sanitation, delivery of inventory to residences or businesses, and facilitation of employee remote work.

The Orders also ban all public and private gatherings of any number of people outside a single household or living unit, except for “Essential Activities.”  Essential Activities are listed at length in the Orders, but are generally those important to health and safety.  This includes activities like getting food and supplies, outdoor exercise (within certain limits), performing work for an Essential Business, and providing healthcare to a family member or pet, among others.

Businesses and individuals should keep in mind that if a conflict exists between the new Bay Area Orders and any other orders, they should adhere to the most restrictive measure.

New Requirements for Essential Businesses to Prepare and Post “Social Distancing Protocols”

The Orders also put in place some new and highly time-sensitive requirements.  This includes the requirement that businesses deemed Essential Businesses must each prepare and post by 11:59 PM on April 2, 2020 a Social Distancing Protocol for any facility frequented by the public employees.  The Orders include a form Social Distancing Protocol as Appendix A, and require that each Social Distancing Protocol be in substantially that same form.  To access the form Social Distancing Protocol Appendix A located at the end of the Orders, click here.

Each Essential Business must post their Social Distancing Protocol at or near the entrance of each of their facilities where they can be easily viewable by the public and employees.  The Essential Businesses must also provide a copy of the Social Distancing Protocol to each employee who performs any work at the facility.  An Essential Business must provide evidence of its implementation of the Social Distancing Protocol to authorities upon demand.  It is recommended that businesses post and provide the Social Distancing Protocol in other languages in addition to English, as applicable to the needs of their employees and customers.  Businesses should be able to tell authorities that everyone can understand the protocol without the need for the viewer to obtain a translation.

Each Social Distancing Protocol must explain how the business is achieving the following, as applicable:

1. Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete the Essential Business activity;
2. Where lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing;
3. 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, and in locations where there is high-frequency employee interaction with members of the public (e.g. cashiers);
4. Providing for contactless payment systems or, if not feasible to do so, the providing for disinfecting all payment portals, pens, and styluses after each use;
5. Regularly disinfecting other high-touch surfaces;
6. Posting a sign at the entrance of the facility informing all employees and customers 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 one’s elbow; not shake hands or engage in any unnecessary physical contact; and
7. Any additional social distancing measures being implemented (see the Centers for Disease Control and Prevention’s guidance at: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html).

Conclusion and Next Steps 

As discussed above, all business and individuals in the seven Bay Area Counties must comply with the new Orders requiring “shelter-at-home” through May 3, 2020.  Special attention should be placed on whether certain businesses, business activities, or personal activities fall into exceptions to the order.

Essential Businesses must ensure compliance with the new “Social Distancing Protocol” preparation and posting requirements by 11:59 p.m. on April 2, 2020.  Time is of the essence, and the Order grants authorities the power to enforce this requirement.

Businesses should take care that they do not run afoul of any employment or other laws in their implementation of their Social Distancing Protocol.  All other laws remain in effect while the Orders are in effect, and businesses should take care not to try to meet one requirement at the expense of others.  For instance, the requirement from Appendix A of the Orders that employers should conduct “symptom checks” before employees may enter the workplace needs to be met in a way that does not violate employee medical privacy rights.  The same is true for when employees are told not to come to work if sick.

If you have questions or concerns about meeting the requirements of the new Orders, including the Social Distancing Protocol, please contact the authors of this article or the other attorneys at AALRR to prepare or review your Social Distancing Protocol and your legal options in your particular circumstances.

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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