Seyfarth Synopsis: The State of California added another patch to the patchwork of county and city orders requiring businesses to close and employees to stay home in response to COVID-19. It, along with the Cities of Los Angeles, Long Beach and Pasadena, and the Counties of Colusa, El Dorado, Humboldt, Los Angeles, Placer, and Sacramento issued stay-at-home orders, which took effect on March 20, 2020.
California Stay-At-Home Order
As many Californians were sitting down for dinner on March 19, Governor Newsom took to a podium to announce that California was ordering many California businesses closed, and their employees to stay at home. The Governor made his Executive Order to curb the spread of COVID-19 throughout the state.
Sparse on details, the order requires everyone living in the state to remain in their residences, except to maintain sixteen “critical infrastructure sectors” outlined by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). The order cites a link to CISA’s website, which can be found here. According to one section of the order, individuals working in these sixteen critical infrastructure sectors may continue to travel to work.
However, the order also specifically references guidance issued by CISA on March 19, 2020, which is specific to the COVID-19 pandemic. The order cites this guidance as consistent with the directives in the order. Differing from CISA’s website, which provides broad explanations of the sixteen essential sectors, the CISA guidance details “Essential Critical Infrastructure Workers” for limited sectors. These sectors are:
Healthcare / Public Health
Law Enforcement, Public Safety, First Responders
Food and Agriculture
Water and Wastewater
Transportation and Logistics
Communications and Information Technology
Other Community-Based Government Operations and Essential Functions
Critical Manufacturing (which references dams)
Defense Industrial Base
For each sector, the guidance lists job duties that make a worker “essential” during the COVID-19 pandemic. It does not, however, contain the all the sectors listed on the CISA webpage cited in the order. For example, the guidance does not address the “Commercial Sector,” which arguably encompasses retail, leading to uncertainty regarding whether certain retail businesses can continue to operate in the State.
Also unclear is the effect the order has on the county and municipal ordinances proliferating in California. Unlike New York State, California’s order does not expressly preempt local orders. Instead, the FAQs released with California’s order seem to suggest the opposite is true; they include links to each County’s response to COVID-19 and note that the counties are working to respond to COVID-19 as well.
The State’s order goes into effect immediately, and will remain in effect “until further notice.”
New County And City Orders
At the same time that Governor Newsom unveiled California’s stay-at-home order, six counties and three Los Angeles-area cities issued their own orders. This brings the total number of county orders to twenty-three, and at least four municipal orders.
We discuss the orders in San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz and Marin Counties, here.
We discuss the orders in, Monterey, San Benito, and Sonoma Counties, here.
We discuss the orders and directives in Lake, Mendocino, Napa, Solano, Sutter, Yolo, and Yuba Counties, along with the City of Fresno, here.
Colusa, El Dorado, Humboldt, Placer, and Sacramento Counties. Colusa, El Dorado, Humboldt, Placer, and Sacramento Counties’ orders echo many issued in other counties. Employers in each county should review the orders carefully, but generally, each requires non-essential businesses to cease all activities unless employees can work remotely. Like the prior orders, some vary in what they designate as “essential,” but each order allows employees providing essential products or services to “Essential Businesses” to travel to work. The orders also allow employees to travel to a workplace to provide “Minimum Basic Operations,” such as providing for payroll and benefits, ensuring security, protecting inventory, and engaging in activities to allow other employees to work from home.
All are effective March 20, 2020. Sacramento’s order runs through April 7, 2020, Humboldt’s runs through April 9, 2020, with Colusa and Placer Counties’ orders running through April 10, 2020. El Dorado County’s order is effective through April 16, 2020.
Los Angeles County. The County of Los Angeles’s “safer at home” order—which only applies to the Los Angeles County Public Health Jurisdiction; the Cities of Long Beach and Pasadena are not part of the jurisdiction—focuses on retail establishments. After banning gatherings of ten or more people, it orders the immediate closure of all non-essential retail businesses. This includes indoor malls and indoor shopping centers. Per the order, even “essential stores” in the malls must close unless customers can access those stores by an exterior door.
The order, however, does not define “non-essential retail business.” It simply defines “essential businesses” consistently with the other county orders. Essential businesses include grocery stores, convenience stores, stores that sell household consumer products, gas stations, banks/financial institutions, hardware stores, post offices/shipping stores, restaurants (only for delivery, takeout, carryout), businesses that sell computer products/products to work from home, among other things. Notably, the order is silent on whether non-essential retailers can maintain minimum basic operations, which includes providing security and maintaining inventory.
The County’s order also expressly states that it does not supersede stricter limitations that cities in the county might pass.
The order took effect on March 20, 2020, and runs through April 19, 2020.
The City of Los Angeles. The City of Los Angeles issued a broader stay at home order than the County. Its “safer at home” order requires all but “essential” businesses to cease operations that require in-person attendance by workers at a workplace. The City’s list of essential businesses is similar to many used by the counties outlined above and in previous posts. However, like Los Angeles County, the City expressly requires indoor shopping malls—including essential businesses that do not have external entrances—to close. This order, like the County’s order, is silent on whether non-essential retailers can maintain minimum basic operations.
The order took effect on March 20, 2020 and continues through April 19, 2020.
The City of Long Beach. The City of Long Beach also issued a “safer at home” order that is a hybrid between the County of Los Angeles and the City of Los Angeles’ orders. The City of Long Beach requires all indoor malls, indoor shopping centers, indoor and outdoor playgrounds, and non-essential businesses to close. Notably, essential businesses contained within the indoor mall who have their own exterior entrance (outside of the mall) can remain open so long as they practice social distancing. Like the City of Los Angeles, this order requires all non-essential business employees to work from home but it allows non-essential businesses to conduct “minimum basic operations” which include minimum operations necessary to “maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions.”
The order identifies essential businesses and conforms to that of the County of Los Angeles and City of Los Angeles. Excluded from the provisions of this order are Healthcare operations such as hospitals, pharmacies, healthcare service provides, cannabis dispensaries, among others. Essential infrastructure, such as public works constructions, public transportation, port operations, among others are also excluded.
This order went into effect at 11:59 p.m. March 19, 2020, and will continue through April 19, 2020.
The City of Pasadena. The City of Pasadena, like the Cities of Los Angeles and Long Beach, also passed a “safer at home” order. The order limits all group events and gatherings to fewer than ten people, and requires smaller groups to practice social distancing measures, such as posting signs, providing soap and water or hand sanitizer, separating individuals by at least six feet, and adhering to CDC and Pasadena Department of Health guidelines. The order also closes all non-essential businesses, indoor malls and shopping centers, and indoor and outdoor playgrounds. The order does allow outdoor mall owners to remain open so long as they enforce social distancing measures outlined above. The order does not specifically address whether employees must work from home nor does it address “minimum basic requirements.”
The order like the County of Los Angeles, City of Los Angeles, and Long Beach addresses the same host of essential businesses. Essential businesses may continue to operate and healthcare operators and essential infrastructure operators are excluded from the order.