Seyfarth Synopsis: At 12:01 AM on March 17, 2020, with the exception of some specific tasks and jobs, seven Bay Area counties are requiring all residents to shelter in place until at least April 7, 2020, in an effort to curb the spread of the coronavirus. The orders drastically change the employment landscape for companies both within and outside the seven counties, effectively requiring many employees to stay home.

The Basics.

San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz and Marin Counties have issued nearly identical shelter-in-place orders. Starting on March 17, and continuing for at least the next three weeks (until April 7, 2020), the orders prohibit all movement within, into, or out of the covered counties, except for limited purposes. We provide more detail below, but briefly employees can travel for four general purposes:

  • to work at "Essential Businesses";
  • to perform "Minimum Basic Operations" at "non-essential businesses";
  • to perform "Essential Governmental Functions"; and
  • for "Essential Activities."

The orders are scarce on enforcement details, except to note that employers and employees who violate the orders commit a misdemeanor punishable by fine and/or imprisonment.  

Effect on In-County Employers. For private-sector employers with operations and offices in any of these counties (both profit and non-profit), the implications of the orders are profound. Unless an employer is an "Essential Business," or the employee performs "Minimum Basic Operations," employees cannot travel into the counties to work. Non-essential businesses must cease operating in the counties (with limited exceptions), unless their employees can perform work from home.

Out-of-County Employers. These orders also effect employers in other counties. They prohibit employees who live in places like San Francisco, San Jose, Oakland, and other covered cities from traveling to businesses in other counties, for instance companies based in Napa or Sacramento. In other words, employers—even in other counties—cannot require employees to attend work unless the employer is an "Essential Business" or the impacted employee provides "Minimum Basic Operations."

Some Specifics.

Although the orders are essentially the same, San Francisco has emphasized in guidance issued for residents and employers (which also has a helpful FAQ section) that the counties can, and likely will, update the orders as conditions change. Here is what we know now:  

Essential Activities. Employees can travel into and out of the covered counties to perform "Essential Activities." In addition to things like buying groceries, getting medicine, and other supplies, "Essential Activities" include providing "essential products and services at an Essential Business," and providing "Minimum Basic Operations" at other business.  

Essential Business. The orders permit employees to travel to "operate" Essential Businesses. The orders do not define "operate" or limit which employees actually operate the business. They do, however, contain fairly extensive lists of "Essential Businesses." Some of the highlights include:

  • Health Care Operations. Employers such as hospitals, clinics, pharmacies, biotechnology companies, healthcare suppliers, mental health services, home health entities, veterinarians, among other health-related enterprises
  • Grocery Stores. Any store that sell groceries, even if it also sells other non-grocery products.
  • Restaurants. Restaurants may remain open for food preparation, delivery, and carryout services only. Dine-in services are prohibited under the orders.
  • Ride Hailing, Taxis, Airlines. These entities are essential, provided they are used for "Essential Activities."
  • Banks and Financial Institutions.
  • Accounting and Legal Services. But only if providing compliance with legally mandated activities.
  • Childcare Facilities. Only childcare facilities enabling employees exempted from the orders to work. The orders place a number of restrictions on the facilities.
  • Essential Infrastructure. Employers engaged in construction on housing, and public infrastructure, as well as waste management companies, airports, utilities, public transportation entities, and telecommunications providers.
  • First Responders. Fire, police, court personnel, and other emergency management personnel fall under this category.
  • Farmers and Food Cultivators. This includes farmers, ranchers, and fishermen.
  • Social Services Providers. Employers such as food pantries, homeless shelters, and other social services providers.
  • Media Services. This includes newspapers, television, and radio companies.
  • Residential Facilities. Group homes, and other residential care providers are included.
  • Public and Private Schools and Universities for Distance Learning Only. The exception is limited to staff necessary to facilitate distance learning and other essential functions. The orders effectively stop all in-person learning at public and private educational institutions.
  • Other Entities. Delivery services, gas stations, auto-repair business, laundromats, dry cleaners, hardware stores, office supply stores, home repair service providers (e.g., plumbers, electricians and exterminators), among others.

Minimum Basic Operations. For "non-essential" companies, employees can also travel to provide a few basic operations. These include:

  • maintaining payroll and benefits;
  • maintaining inventory; and
  • enabling other employees to work from home.

If employees work for an "Essential Business" or perform "Minimum Basic Operations," the employees may travel to work. However, when at work, the orders require employers to ensure that employees practice "Social Distancing."  This means staying 6 feet away from other people, washing hands frequently, using hand sanitizer, regularly cleaning high-touch surfaces, and covering mouths when sneezing or coughing.

Again, the counties admit that they put these orders together quickly. They expect them to change as the coronavirus pandemic continues to develop. We will follow these developments closely, so be on the lookout for updates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.