Bay Area Authorities Extend COVID-19 Shelter-in-Place Orders but Expand The Types of Businesses Allowed to Operate

On April 29, 2020, six San Francisco Bay Area counties[1] and the City of Berkeley issued new Shelter-In-Place orders (the “Orders”) in response to the COVID-19 pandemic, effective May 4 through May 31, 2020.[2]  While the concept underlying the Orders remain the same as prior orders—residents and individuals that work in these counties are expected to stay home to thwart the spread of COVID-19, and businesses are directed to maximize the number of personnel who can work from home—the counties and Berkeley relaxed certain restrictions and expanded the scope of businesses allowed to operate.

Most significantly, the definition of “Essential Businesses” now includes all construction work, and a newly defined class of “Outdoor Businesses” may open to the public.  All open businesses (whether Essential, Outdoor, or non-exempt but open for the purpose of Minimum Basic Operations) must prepare, post, and implement specified “Social Distancing Protocols.”  Construction job sites are required to conform to newly introduced “Construction Safety Protocols.”

This article looks at a few of the material changes in the Orders.  However, all businesses operating in any of the affected areas, especially those in the construction arena, are well-advised to review the new orders and consult with their attorneys to ensure that they are in compliance once work is ready to resume.  Moreover, businesses need to remember that each Order expressly provides that “[w]here a conflict exists between this Order and any state public health order related to the COVID-19 pandemic, the most restrictive provision controls.” It is therefore crucial for companies that work in the Bay Area to understand how the Orders impact their businesses and interact with state-level Stay at Home Orders.

Social Distancing Protocols for All Businesses

All businesses “as a condition of operating under… [the] Order[s]” are required to prepare or update, and implement Social Distancing Protocols based on the template attached to the Orders at Appendix A.  Social Distancing Protocols are a series of measures designed to create physical space between individuals and codify additional sanitary or hygiene protocols intended to reduce transmission of the virus.  While the Appendix A to the new Orders is substantially similar to the one attached to prior orders, it does contain one significant, substantive, change: the introduction of a requirement for employees to wear a face covering.  This requirement, the subject of prior, separate, health orders,[3] mandates that businesses require their personnel to wear a face covering while interacting in person with any member of the public; working in spaces open to the public or in common areas or where food is prepared or packaged; or in any enclosed area when other people (except for members of the same residence) are present.  Businesses must also take reasonable measures to remind members of the public that they must wear a face covering while inside or waiting in line to enter.  Businesses that previously prepared a notice of Social Distancing Protocols are now required to update it based on the revised Orders and any new health directives, including the directive on face coverings.

Critically, the Orders make clear the Social Distancing Protocols template must be posted and implemented at any facility “visited or used by the public or personnel.”  Thus, even non-essential businesses that have employees coming into facilities not open to the public—those performing Minimum Basic Operations—must implement and post the Social Distancing Protocols.  The Orders expressly provide that businesses may be required to provide evidence the protocols were implemented to any enforcing authority.

Expansion of “Essential Businesses” to Include Construction

Likely the most significant change under the Orders is the resumption of all construction work allowed under the State Shelter Order.  The prior county-level shelter-in-place orders had limited the types of construction projects to ones involving public works, healthcare facilities, and low-income housing.  This put most commercial and residential construction on hold.  The current Orders’ revised definition of construction as an Essential Business defers to the State Shelter Order and effectively allows most any project to proceed.

However, the Orders mandate that all construction work takes place pursuant to specific Construction Safety Protocols, outlined in Appendix B of the Order, in lieu of the Social Distancing Protocols.  Construction job sites are thus required to adhere to the more demanding Construction Safety Protocols, while business operations or support work for construction projects must follow the Social Distancing Protocols, including the requirement for remote work.

Companies performing construction work must be mindful that different Construction Safety Protocol elements will be required depending upon the type and size of the project and the applicable protocols should be reviewed carefully.[4]   Among other things, the Construction Safety Protocols require:

• Compliance with OSHA and Cal-OSHA laws and regulations (but the Orders clarify that stricter requirements under the Orders control);
• Establishment of daily screening protocol to ensure that potentially infected workers do not enter the construction site, establishment of cleaning and decontamination protocols in connection with entry and exit from the worksite, and the posting of these protocols at all job site entrances. Notably, the Orders mandates that if a worker leaves the job site and returns, the daily screening must be repeated;
• Enforcement of delineated processes if a COVID-19 case is confirmed in connection with the job site. Specifically, the responsible party must:  (i) send the worker home (with direction to seek medical care); (ii) retain a certified hazmat vendor to decontaminate any areas of the job site where the staff member was working; and (iii) provide notice to the local health department;
• Prohibition of job site gatherings, use of common equipment or rooms (e.g. microwaves), or sharing of foods. Employees who share food or water must be sent home for the day;
• Employers provide workers with construction personal protective equipment, such as gloves, face shields, and face coverings. Notably, the Orders distinguish “construction PPE” from “medical-grade” PPE;
• Deployment of general social distancing requirements, such as physical spacing of six feet, staggering trades to reduce job site density, enhanced hygiene and cleaning/sanitizing procedures for the job site, and a posting of these requirements for job site workers and guests;
• Maintenance of a daily attendance log with contact information, including address, telephone, and email, for all workers and guests that enter sites; and
• Observance of specific procedures for working within occupied residential buildings or common areas of residential or commercial buildings such as physically sealing off the work area, ventilating work areas, cleaning and sanitizing of the work area, and minimizing contact between workers and building occupants.

For large construction projects, the Orders additionally require:

• Assignment of a COVID-19 Safety Compliance Office whose name is posted in the health and safety plan and who is responsible for (1) ensuring implementation of the Construction Safety Protocols at the job site, including the daily screening program, and (2) documenting compliance;
• Assignment of a COVID-19 “Third-Party Jobsite Safety Accountability Supervisor” to audit job site compliance;
• Preparation of a new, or updated, site-specific COVID-19 Health and Safety Plan. The COVID-19 section of the Health and Safety Plan should include a “community spread reduction plan” which includes, at a minimum, prohibitions on carpooling, prohibition of shared food equipment such as microwaves, water coolers, and similar, and prevention of shared food or beverages at the job site, and should be posted at all entrances to the site; and
• Translation of any procedure or notice described above for any non-English speakers.

For small projects, the Orders require the designation of a site-specific COVID-19 supervisor, to be present on site at all times, who is responsible for reviewing the Construction Safety Protocols with all workers and guests to the site.  That COVID-19 supervisor may be an on-site worker who is designated for the role.

Creation of a Category of “Outdoor Businesses”

The newly created category of “Outdoor Businesses” are now authorized to operate.  Outdoor Businesses are defined as those businesses that, prior to March 16, 2020, either “primarily operated outdoors” or “primarily provided outside services.”  This category includes nurseries, agricultural operations, garden centers, landscaping and garden services, and environmental site remediation services.  The category expressly does not include outdoor bars, restaurants, or cafes.

Importantly, the Orders require that these businesses may re-open only so long as the facility is able to maintain social distancing of at least six feet and conducts all business and transactions involving members of the public outdoors.  Under the prior orders, work such as landscaping and garden services was limited to work necessary for public sanitation, habitability, or safety reasons.

As we discussed here, prior orders effectively halted environmental work under the oversight of local jurisdictions.  The Orders now allow many environmental investigations and cleanups to proceed out of doors.  However, work related to indoor air quality or that requires indoor access is a different story and may still be on hold as the Orders carve out environmental site remediation services from ordinary construction work. Pragmatically, for most indoor work to proceed, environmental consultants will likely need to follow procedures similar to those required for small construction projects.  Environmental consultants are advised to check their site’s case manager for further guidance as to this work.

Last, the Orders clarify that non-essential businesses that are allowed to maintain “minimum basic operations” are not permitted to do business on a “curbside pickup” basis.

Conclusion

The Orders represent a relaxation of certain restrictions imposed under the prior shelter-in-place orders which were rightfully considered some of the most restrictive in the Country and arguably the most successful: the Bay Area has been succeeding thus far in “flattening the curve.”  These Orders depend upon the continued success of those mitigation efforts so businesses allowed to resume operations should recognize they face an increased regulatory burden and potentially increased costs to ensure compliance.

How We May Help Your Company

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[1] San Francisco, Santa Mateo, Santa Clara, Alameda, Contra Costa, and Marin Counties.

[2] A copy of a representative shelter-in-place order may be found here (last viewed May 1, 2020).

[3] See, e.g., San Mateo County Order of the Health Officer NO. C19-8 (last viewed May 1, 2020).

[4] The Construction Safety Protocols divide construction projects into small and larger ones; large projects, generally, are defined as ones involving more than ten residential units, 20,000 feet of commercial space, or that involve more than five employees in connection with an Essential Infrastructure project.