by Alexandra P. Saddik and Jonathan R. Babione
California has been modifying its state stay-at-home order to allow more businesses to reopen. The Bay Area has also announced modifications to their shelter-in-place orders. In doing so, the Bay Area counties are starting to align with the state order, although there are still some key differences. Below is a guide to navigating both the state and county orders and guidance that has been issued so far.
Bay Area: Though the six Bay Area counties and the city of Berkeley continue to work together in coordinating their responses to COVID-19, the new shelter-in-place orders have started to diverge. For example, San Mateo County is allowing retail businesses, retail supply chain businesses, services that do not require close customer contact, outdoor museums, and state identified essential businesses to reopen. Santa Clara County is allowing retail stores, retail supply chain businesses, outdoor museums, outdoor historical sites, and publicly accessible gardens to open. San Francisco, Marin, and Contra Costa counties are allowing retail stores and retail supply chain businesses to reopen. Alameda County and Berkeley are allowing retail stores, manufacturing, and logistics and warehousing to open, and has provided a complete list of businesses that may and may not operate in the county.
Though the types of businesses that are allowed to reopen differ depending on the county, all the Bay Area counties still require the same precautions. Retail stores that are allowed to reopen can only reopen for curbside or outdoor pickup, meaning that only retail stores that have direct access to a sidewalk, street or alley may open. All businesses must still implement and post a social distancing protocol to protect customers and employees, and the existing quarantine, isolation, and face covering orders are still in effect. San Francisco provides additional COVID-19 prevention and social distancing guidance for specific industries. Employers can find more specific information about individual county requirements here:
Alameda County: http://www.acphd.org/2019-ncov/health-officer-orders.aspx
Contra Costa County: https://www.coronavirus.cchealth.org/health-orders
San Mateo County: https://www.smchealth.org/post/health-officer-statements-and-orders
Santa Clara County: https://www.sccgov.org/sites/covid19/Pages/order-health-officer-05-18-20.aspx
California Stay-At-Home Order: Governor Newsom outlined a four-step plan to fully reopening the Californian economy. California is currently in early Stage 2, which means that statewide curbside retail, manufacturers, logistics, childcare, office-based businesses, car washes, pet grooming, landscaping, and outdoor museums can now open statewide. Certain counties can proceed further into this stage if they can get state approval; currently, none of the Bay Area counties have reached this point. Though California’s modifications are in some degree more relaxed than the Bay Area restrictions, the Bay Area counties are still following the policy of abiding by the more restrictive provisions. As such, businesses and employers should still look to their county’s orders in order to determine if they can open.
However, apart from the county social distancing requirements, the state has also issued guidance businesses are required to follow in order to reopen; these guidelines can be found at https://covid19.ca.gov/industry-guidance/. All businesses are required to do the following:
- Perform a detailed risk assessment and implement a site-specific protection plan.
- Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them.
- Implement individual control measures and screenings.
- Implement disinfecting protocols.
- Implement physical distancing guidelines.
Each industry has its own guidance. The guidance documents are intentionally written broadly to allow individual businesses to create COVID-19 prevention plans that fit their unique needs. This being said, in creating their plans, some issues employers should consider include:
Employee Training: Employers should consult with their industry-specific guidance in assessing the nature of employee training required by the state. Additionally, employers should carefully document that employees have been trained and understand the COVID-19 site prevention plan.
Employee Privacy: As indicated above, employers are required to implement a screening protocol. This creates employee privacy implications, not only with the existing laws on employee privacy but also with the California Consumer Privacy Act (CCPA). Employers need to craft their screening processes such that personal employee information is protected and that employees understand the purpose and intent of collecting that information.
Another significant privacy implication employers should be aware of is protecting the privacy of an employee diagnosed with COVID-19. According to the CDC, the only situation in which employers may disclose any information about employee health is if there is a confirmed positive case of COVID-19 in the workplace; even then, employers may not disclose the identity or specific details regarding the employee.
Sick Leave: Bay Area businesses who, due to being shut down, did not need to worry about the new sick leave policies under the Families First Coronavirus Response Act (FFCRA) should check to see if they would now be obligated to provide emergency sick leave or emergency family medical leave. Additionally, Governor Newsom issued an executive order that creates a rebuttable presumption that employees who test positive for COVID-19 contracted it at the workplace and would thus be eligible for worker’s compensation.
Additional Resources: The guidance posted by California is intended to be broad enough for businesses to use as a strong foundation for developing their own plan. As a result of this, however, the guidance can be vague and confusing for employers looking for specific details that will ensure their plan is compliant. Businesses and employers can look at the following resources in addition to the mandatory state guidance to create a compliant risk assessment and plan:
CDC Business and Employer Guidance: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html
OSHA Workplace Guidance: https://www.osha.gov/Publications/OSHA3990.pdf
Ferber Law is continuing to check for updates surrounding COVID-19 and is ready to assist you as businesses are preparing for the next stage of reopening the economy. Stay well.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.