United States: Gradually Opening For Business – California Issues Reopening Guidelines

Seyfarth Synopsis:  On May 7, 2020, California issued additional guidance to help businesses prepare to reopen as part of Stage 2 of the State's 4-staged reopening roadmap. The guidance lays out 5 steps that certain businesses must take to reopen, gives industry-specific guidelines for certain businesses, and provides counties with additional information on what to do if they want to reopen sooner. 

As promised on May 4, Governor Newsom outlined steps (press release and accompanying PowerPoint) that businesses must take to reopen as the State gradually loosens restrictions on lower risk workplaces, as part of Stage 2 of its 4-stage Resilience Roadmap. Beginning on May 8, the State will allow curbside and delivery retail operations—along with logistics, warehouse, and manufacturing operations supporting the retail sector—to reopen (subject to stricter county orders, such as San Francisco, which has indicated that only a limited type of retail will be permitted to resume curbside operations on May 18). Before reopening, these early Stage 2 businesses must:

1. Perform a detailed risk assessment and implement a site-specific protection plan;
2. 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;
3. Implement individual control measures and screenings;
4. Implement disinfecting protocols; and
5. Implement physical distancing guidelines.

As part of the gradual reopening contemplated by the State, the following businesses are on deck to reopen later in Stage 2:

• Destination retail, including shopping malls and swap meets;
• Personal services, limited to: car washes, pet grooming, tanning facilities, and landscape gardening (but not nail salons);
• Office-based businesses (though telework remains strongly encouraged);
• Dine-in restaurants (other facility amenities, like bars or gaming areas, are not permitted);
• Schools and childcare facilities; and
• Outdoor museums and open gallery spaces.

To enable these businesses to prepare for reopening, California's Department of Public Health and Cal-OSHA, in collaboration, released 17 industry-specific sets of guidelines to foster a safe and clean environment for its employees and customers, and to assist in the preparation of the requisite protection plan. The industries covered by the guidelines released on May 7 are:

• Agriculture and livestock
• Auto-dealerships
• Communications infrastructure
• Construction
• Delivery services
• Energy and utilities
• Food packing
• Hotels and lodging
• Life sciences
• Logistics and warehousing facilities
• Manufacturing
• Mining and logging
• Office workspaces
• Ports
• Public Transit and Intercity Passenger Rail
• Real estate transactions
• Retail

In the absence of further directives from the State, these guidelines appear to be advisory, as "[b]usinesses may use effective alternative or innovative methods to build upon the guidance" when conducting pre-reopening risk assessments. The guidance for each industry contains many of the same elements (such as social distancing), but does include a few industry-specific "methods." These include, for example:

• Retailers should increase pickup and delivery service options and encourage physical distancing during pickup – such as loading items directly into a customer's trunk or leaving items at their door.
• Retailers should install hands-free devices, if possible, including motion sensor lights, contactless payment systems, automatic soap and paper towel dispensers, and timecard systems.
• Manufacturing companies should close breakrooms, use barriers, or increase distance between tables/chairs to separate workers and discourage congregating during breaks. Where possible, create outdoor break areas with shade covers and seating that ensures physical distancing.
• Warehouses should minimize transaction time between warehouse employees and transportation personnel. Perform gate check-ins and paperwork digitally if feasible.
• Warehouse workers should clean delivery vehicles and equipment before and after delivery, carry additional sanitation materials during deliveries, and use clean personal protective equipment for each delivery stop.

The Governor also provided more information about how counties can open sooner than the State, and which businesses the counties can target. To open more quickly, counties must (1) meet certain specific readiness requirements (outlined here); (2) consult with the State Department of Public Health; and (3) submit a CDPH COVID-19 Variance Attestation Form to the State verifying that the county meets the readiness criteria. However, even if a county is granted permission to open Stage 2 businesses more rapidly than the rest of the State, no county will be permitted to advance beyond Stage 2.

With the new State guidance in place, businesses should consult their local county and city public health departments to ensure compliance with state and local government requirements. As noted on May 4, the State's guidance will not affect more stringent county and city regulations. Such directives will remain in effect until the local governments lift or modify them.