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Bay Area Counties Impose Social Distancing Protocols for Essential Businesses
Apr 2, 2020

Bay Area Counties Impose Social Distancing Protocols for Essential Businesses

Topics: COVID-19

On March 31, 2020, several Bay Area Counties (San Francisco, Santa Clara, Marin, Alameda, San Mateo, Contra Costa, and the City of Berkeley) extended and modified their previous March 16, 2020 Shelter-in-Place Orders in an effort to further slow the spread of COVID-19, which will remain in effect until May 3, 2020 unless further modified, rescinded, or extended (“March 31 SIP Orders”).

In many respects, the March 31 SIP Orders are similar to the prior March 16 SIP Orders in directing individuals to stay at home except to perform “essential activities” (such as obtaining groceries, seeking medical treatment, or work for an “essential business”), engage in “essential travel”, perform “essential governmental functions”, or perform “minimum basic operations” for non-essential businesses.  The March 31 SIP Orders clarify that all businesses (even essential businesses) are strongly encouraged to allow employees to work from home to the maximum extent feasible.  However, the March 31 SIP Orders also substantively modify the categories of “essential businesses,” clarify that businesses that provide support and supply to essential businesses may maintain in-person operations only as necessary to support those essential businesses, require all businesses that remain operational to immediately adopt “social distancing protocols,” and further restrict or prohibit use of public spaces/recreational areas with “high touch equipment” (e.g. playgrounds, outdoor gym equipment), among other notable changes.  This article is not intended to provide an exhaustive summary of all changes contained in the March 31 SIP Orders, one of which can be viewed here.

Among some of the notable changes to the list of “essential businesses” are: (1) businesses that provide office supplies (and those necessary for telework) have been removed from the list; (2) construction has been limited to a handful of categories (e.g. essential infrastructure, Healthcare Operations, affordable housing, shelters/temporary housing); (3) gas stations, auto supply/repair shops and car dealerships may operate only to supply gas, provide auto supplies, or perform repair services (delivery directly to consumers and essential businesses are still allowed) – but not engage in car sales or car washes; (4) businesses that supply other Essential Businesses with the support or supplies necessary to operate can continue to do so, but only to the extent that they support or supply these Essential Businesses (cannot be used to engage in sales to the general public from retail storefronts);  (5) professional services, such as legal, notary, or accounting services, are considered essential businesses “when necessary to assist in compliance with non-elective, legally required activities;” (6) childcare facilities may continue to operate but only to provide childcare services to those working in essential businesses or performing essential governmental functions or those exempt from the March 31 SIP Orders.  Importantly, the following businesses have been added, including: (1) service providers that enable residential transactions (rentals, leases, and home sales) like real estate agents, escrow agents, notaries, and title companies (with restrictions on how they conduct those activities); (2) moving services providers that facilitate moves allowed under the March 31 SIP Orders; (3) services that help individuals find employment at essential businesses; and (4) rental car companies/rideshare companies that facilitate transportation for essential activities or to perform work at essential businesses.

Perhaps of most immediate importance to those essential businesses that are still permitted to operate in-person, the March 31 SIP Orders require that they immediately adopt, post, and inform employees and customers (as applicable) the business’ specific “social distancing protocol” by 11:59 p.m. April 2, 2020, in a form that substantially complies with https://cchealth.org/coronavirus/pdf/2020-0331-Appendix-A-Social-Distancing-Protocol.pdf.  This protocol must be posted at or near the entrance to each facility, must be easily viewable by employees and members of the public, and provided to each employee working at the facility.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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