As communities across the United States experiment with ways to contain local spread of the COVID-19 virus, six California Bay Area counties – Alameda, Contra Costa, Marin, Santa Clara, San Francisco and San Mateo – and the City of Berkeley may not only serve as a litmus test of the effectiveness of such measures in curbing the spread of the virus, but also as a good predictor of new measures that other counties, and the state of California, may put into place in the future.

These six counties became the first in the U.S. to adopt mandatory stay-at-home or “shelter-in-place” orders on March 16, 2020. Numerous California counties followed suit and, on March 19, 2020, California Governor Gavin Newsom issued his statewide shelter-in-place order. Both business within and outside of the six counties note that the six Bay Area counties and Berkeley extended the shelter-in-place Orders on March 31, 2020. The extended Orders, which took effect at 11:59 p.m. on March 31, not only extend the duration of the orders, they also impose additional restrictions both on personal and business activity.

Duration of Extended Orders:

The shelter-in-place orders previously issued by the six Bay Area counties were set to expire on April 7, 2020. The extended Orders require residents of the six counties to remain at home until May 3, 2020. The extended duration of the County orders may seem inconsequential in light of the fact that Governor Newsom’s statewide stay-at-home order currently requires all California residents to stay at home indefinitely, but the duration of the County orders is important for businesses operating in the six counties because those business must comply with both the statewide and County orders, and if the restrictions in the two orders are different, the business must comply with the stricter of the two orders. Therefore, businesses operating in the six counties should be aware that, to the extent the County orders impose requirements that the statewide order does not, they must now comply with the new County requirements until at least May 3.

Additional Restrictions Imposed by San Francisco Bay Area Counties’ Extended Orders:

The extended Orders impose a number of additional restrictions on personal activities, such as limiting access to public parks and the number of people who may attend a funeral, as well as a number of new requirements that must be satisfied by “Essential Businesses” that are permitted to continue operating in the six counties.  Most importantly, the extended Orders require that:

• Essential Businesses must scale down their operations to only “essential components”: The Orders do not define the term “essential components,” and it is possible that the Counties will provide further clarification regarding the meaning of this term in the future. In guidance also issued on March 31, Santa Clara County provided an illustrative example, in which a business that devotes 20% of its manufacturing capacity to essential products and 80% to non-essential products may now only operate at 20% capacity.  However, the Orders clarify that mixed retail businesses that are otherwise allowed to operate under the Orders may continue to stock and sell non-essential products.
• Essential Businesses must prepare and post a “social distancing” protocol: 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 frequented by the public or employees. The Social Distancing Protocol must explain how the businesses are achieving a number of social distancing objectives enumerated in the Orders, such as ensuring a six-foot distance between all persons in the facility at all times, providing effective disinfectants to employees and patrons and regularly disinfecting high-touch surfaces. The Orders attach as Appendix A a template Social Distancing Protocol, and require that the Social Distancing Protocols put in place by business be substantially in the form of the template Protocol.

The extended Orders also greatly limit the types of construction projects (both commercial and residential) that may continue to go forward. The Orders list eight types of construction projects that satisfy the definition of “Essential Business,” and provide that only those types of projects meet the definition. The list includes projects such as projects associated with healthcare operations, low-income and temporary housing, and other construction necessary to the maintenance, operation or repair of the State’s essential infrastructure.

Additionally, the extended Orders add certain specific industries to the definition of Essential Businesses. The newly added industries include services providers that enable residential transactions (e.g., notaries, tile companies and real estate agents), funeral homes, cemeteries, moving companies, rental car companies and rideshare services that are necessary for essential activities (such as obtaining groceries and medical supplies or to perform work for an Essential Business).

This list of restrictions is not exhaustive, and businesses should carefully review the text of the extended Orders and discuss any uncertainties regarding new restrictions that apply to them with legal counsel.

Guidelines Issued by Santa Clara County:

Santa Clara County issued fairly detailed guidelines regarding the extended Orders on March 31. The guidelines provide helpful clarifications on topics ranging from whether employees traveling to and from work at an Essential Business must carry documentation to whether certain types of businesses not specifically enumerate in the Orders satisfy the “Essential Business” definition under the extended Orders. Businesses operating in the six Bay Area counties should review this guidance, available here, and look for similar guidance from the other five counties.

Although the extended Orders most immediately impact the six Bay Area counties where they were enacted, all businesses in California should take note of these Orders as a likely predictor of future measures that will be taken by other counties and the State. Businesses that operate in the six counties must take prompt action to comply with the extended Orders and businesses outside the counties should be prepared to take similar actions on similarly short notice.