Bay Area Shelter in Place Orders: Significant Implications for Employers

Essential Businesses

Essential Businesses are urged to remain open. The orders define 21 categories of Essential Businesses which include:

• Healthcare Operations and Essential Infrastructure;
• Grocery stores, food banks, convenience stores and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, meats, fish and poultry, and any other household consumer products, including stores that sell products necessary to maintaining the safety, sanitation and essential operation of residences; 
• Food cultivation, including farming, livestock and fishing;
• Businesses that provide food, shelter and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals; 
• Newspapers, television, radio and other media services;
• Gas stations and auto-supply, auto-repair and related facilities;
• Banks and related financial institutions;
• Hardware stores;
• Plumbers, electricians, exterminators and other service providers who provide services that are necessary to maintaining the safety, sanitation and essential operation of residences, Essential Activities and Essential Businesses;
• Businesses providing mailing and shipping services, including post office boxes;
• Educational institutions for purposes of facilitating distance learning or performing essential functions; 
• Laundromats, drycleaners and laundry service providers;
• Restaurants that prepare and serve food, but only for delivery or carry out;
• Businesses that supply products needed for people to work from home;
• Businesses that supply other essential businesses with the support or supplies necessary to operate;
• Businesses that ship or deliver groceries, food, goods or services directly to residences;
• Airlines, taxis and other private transportation providers;
• Home-based care for seniors, adults, or children;
• Residential facilities and shelters for seniors, adults and children;
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
• Childcare facilities operating under specific conditions in the Orders.

While there is some ambiguity and uncertainty surrounding these categories (perhaps intentionally), they should be read in the context of trying to balance the desire to continue to support individuals in their daily living activities against the desire to encourage (and require) self-isolation.

The San Francisco Police Chief, speaking about the decision to promulgate these Orders, indicated that the City and Police Department seek “voluntary compliance” with the Order. Individual businesses should make a good-faith assessment as to whether the products or services they offer fit within one of the specifically enumerated Essential Business categories and consider the public-health risks associated with non-essential interactions. However, as noted below, there are criminal penalties for violating these Orders, so careful and thoughtful analysis is critical.

Minimum Basic Operations for Non-Essential Businesses

All businesses that are not Essential Businesses must cease operations except for those necessary to maintain “Minimum Basic Operations.” These are defined as: the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions and to facilitate employees of the business being able to continue to work remotely from their residences.

In any case, all businesses remaining open for any purpose must follow the Social Distancing requirements, also defined by the Orders and which include such practices as six feet of physical separation, hand washing and other similar health-related practices.

Public

For individuals and employees, the Orders require people to remain at their place of residence absent delineated activities set forth in the Orders such as attending work at an Essential Business, getting groceries or medical supplies and getting exercise. When individuals do leave their homes for walks or for essential activities, they must stay at least six feet apart. Individuals are prohibited from engaging in in-person group activities, going to hair and nail salons, or shopping for non-essential goods.

The Orders also incorporate by reference Governor Newsom’s recommendation to people age 65 and older to self-isolate and urges the same for individuals with health conditions that place them at special risk for complications from COVID-19. While those recommendations do not appear in the body of the Orders themselves, state and local officials have strongly advised that those groups take special precautions.

Enforcement

The Orders are issued under the authority of California law and it is a misdemeanor crime not to follow these orders. A violation could result in a fine of up to $1,000 and imprisonment for up to 90 days. In some cases, actively resisting enforcement of the Orders may carry heightened penalties.

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¹San Francisco, Alameda, Contra Costa, Marin, San Mateo and Santa Clara counties as well as the City of Berkeley.

²Variation between the orders include the number of cases in each county, revocation of previous local orders and summaries which appear in some of the Orders.