Order to Shelter in Place in San Francisco Bay Area

Yesterday, in response to the rapid spread of the Coronavirus, six Bay Area counties ordered all individuals to shelter at their place of residence – stay at home – beginning Tuesday, March 17 at 12:01 a.m. until 11:59 p.m. on April 7.  The counties are San Francisco, Santa Clara, San Mateo, Marin, Contra Costa and Alameda. The City of Berkeley, which has its own health department, is also participating. The three northernmost Bay Area counties — Sonoma, Solano and Napa — are reported to be considering joining.  Santa Cruz County, immediately to the south of Santa Clara, also joined. 

Individuals may only leave their residences for Essential Activities, Essential Governmental Functions, or to operate Essential Businesses, which are defined below.  Employers that do not provide Essential Businesses or Government Services are required to cease all activities at facilities located within the affected counties, except Minimum Basic Operations (defined below).  If possible, companies are encouraged to continue operations with employees or contractors working from home.

What do all these terms actually mean?  Individuals may still travel outside their homes to engage in Essential Activities.  These include seeking medical care, obtaining food and household products (including by delivery), getting fresh air by walking or running, and caring for family members in another household.  Individuals may also travel to work if their work involves providing essential products and services at an Essential Business, or providing Minimum Basic Operations for their employer. 

Essential Businesses

A number of Essential Businesses are exempt from the order to shelter in place, permitting individuals to leave their residence to travel to and from work: 

• Healthcare Operations:  Working for or obtaining services at any Healthcare Operations.  These include hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers, or any related and/or ancillary healthcare services.  This exemption “shall be construed broadly to avoid any impacts to the delivery of healthcare, broadly defined.” 
• Essential Infrastructure:  Providing any services or performing any work necessary to the operations and maintenance of Essential Infrastructure.  These include, but are not limited to, public works construction, construction of housing, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).  
• Essential Government Functions:  Providing services needed to ensure the continuing operation of government agencies and providing for the health, safety, and welfare of the public.  These include first responders, emergency management personnel, emergency dispatchers, court personnel, and law enforcement personnel.

The Order also contains a long list of specifically-exempted businesses, including grocery and convenience stores, media services, banks, delivery services, and transportation services.  Professional services, such as legal or accounting services, are included in the exemption—but only “when necessary to assist in compliance with legally mandated activities.”  These exempted businesses are not further defined in the orders issued.

Minimum Basic Operations

Even if a business is not considered “essential,” individuals may still travel to and from work to perform Minimum Basic Operations, including the minimum necessary activities to:

• Maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, or
• Facilitate employees of the business being able to continue to work remotely from their residences.

Social Distancing Requirements

Even if a business falls within an Essential Business exemption and even for those maintaining Minimum Basic Operations, the business must still comply with Social Distancing Requirements to the extent possible, which include maintaining at least six-feet social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.  These requirements apply to all individuals outside their residences.

Consequences of Failing to Comply  

A violation or failure to comply with the Order is a misdemeanor punishable by fine, imprisonment, or both.  San Francisco Police Chief Bill Scott stated:  “We are looking for voluntary compliance. ... This is enforceable as a misdemeanor, but that is an absolute last resort.  This is not about a criminal justice approach to a public health issue — this is about educating the public.”

The response to the Coronavirus pandemic continues to develop at a rapid pace, and for many businesses with locations in the Bay Area it is not immediately clear whether a carveout applies.  If you require advice about how to respond to this new order, or any other aspect of your company’s response to the COVID-19 crisis, do not hesitate to contact us.