Labor & Employment Law Blog

The Order went into effect at 12:00 a.m. yesterday, Wednesday, May 27, 2020; it supersedes the County’s prior Order dated May 22, 2020 of the same title. The operative order will remain in effect until the Health Officer provides further notice. The Order contains specific requirements for the public, schools, child care, and businesses. Pertinent parts of the Order’s requirements are summarized below.

THE “ORDER”

The Public

Individuals are still to remain or shelter in their place of residence. There are exceptions, such as employees and customers traveling to and from “essential” and “re-opened” businesses, or essential activities. Additionally, people may travel to participate in individual and family activities allowed pursuant to the Order.

Gatherings. “Gatherings” are prohibited. This applies to all public and private gatherings. The Order defines a gathering as an event or assembly in a room, or single indoor or outdoor space, of more than one person. However, the Order makes an exception for any “gatherings” by people living in the same household or members of a single family, as well as public transportation or locations where people in transit are able to maintain social distancing.

Face Coverings. The Order states everyone “present in the county” two years old or older must have a face covering in their possession when they leave their place of residence. Further, the face covering must be worn when in a business or within six feet of a non-family member or someone not part of their household. The Order exempts individuals with medical conditions, developmental disabilities, or mental health conditions from this requirement.

Outdoor Recreation. Generally, people are not to gather or congregate in public parks and recreation areas unless they are members of a single family or live together. Social distancing is to be applied at campgrounds by separating occupied campsites with vacant ones. Additionally, each occupied campsite may only be occupied by individuals of the same household. Similarly, recreational boating is allowed as long as everyone on board is from the same household. More specific guidelines apply to beaches, golf courses, and other outdoor recreational facilities.

Schools

The Order states schools, public and private, including colleges and universities, are not to hold classes or other activities that would have students gather on campus. Parents must make efforts to ensure their minor children do not participate in prohibited activities. There are exceptions for colleges and universities training essential workers, and for conducting research–related activities.

Child Care

The Order specifically addresses childcare and childcare facilities. The Order states childcare is allowed for groups of 12 or fewer children, and the group is to be comprised of the same children each day. Children are not to switch groups, and if a facility has more than one group, the groups are not to mix and must be kept in separate areas. Further, children and employees at the facility are not required to wear face coverings, described previously, while at the childcare facility. However, the facility must implement screening requirements for employees and children to make sure they do not enter the facility if they have a temperature of 100 degrees or higher. Additionally, regular cleaning and sanitation is required of restrooms and high-touch surfaces, including when there is a change in the group occupying the area.

Businesses

Essential and Re-opened Businesses, Generally. Essential businesses are businesses or activities defined as “Essential Critical Infrastructure Workers” under the State Order found here.

Essential businesses which allow the public to enter their facility are required to prepare and post a “Social Distancing and Sanitation Protocol.” They can do so by using this form, or another governmental agency form with substantially similar required information. This must be done for and at each facility the essential business has open to the public within the county. Essential businesses must implement their Social Distancing and Sanitization Protocol, and provide evidence of compliance upon demand. If the measures in the business’s protocol are not effective to maintain distancing and sanitation, the business must modify its protocols promptly to ensure compliance. If a business is not able to comply with the required distancing and sanitation requirements, it is subject to immediate closure by the county Sheriff or other local law enforcement agency within the county.

Re-opened businesses are businesses that are not “essential,” but have re-opened pursuant to the State of California’s Resilience Roadmap, available here. Re-opened businesses, except for dine-in restaurants as discussed below, are required to complete and post a copy of their “Safe Re-opening Plan” (a template is available here). The plan requires businesses to post signage, address measures to protect employees and customers, and implement measures to keep people at least six feet apart. If the State issues industry specific guidance containing suggested and/or mandatory implementation measures, a re-opened business must also address those requirements in its re-opening plan, in addition to the other requirements of the Order.

Essential and re-opened businesses must also require their employees to wear face coverings, as described above. In addition, businesses are required to perform temperature screening of their employees, and prohibit anyone with a temperature of 100 degrees or more from entering the business. Symptom screening in lieu of temperature screening may only be used when a thermometer is not available. The Order also indicates essential and re-opened businesses “shall make every effort” to utilize telecommuting for their employees.

Restaurants. Restaurants operating on a to–go basis must prepare and post a “Safe Reopening Plan”; a template form is available here.

Dine–in restaurants, however, have a more detailed list of obligations, and must prepare and post a “COVID-19 Restaurant Operating Protocol,” as addressed here. The protocol must be posted at or near the entrance of the restaurant, must be implemented, and provide evidence of the implementation upon demand by any authority enforcing the Order. Some of the more noteworthy requirements are:

• Each employee working at the restaurant must be provided a copy of the COVID-19 Restaurant Operating Protocol to ensure they understand and will comply with the requirements;
• Customers cannot stand, unless they are waiting for a table or picking up a to–go order;
• The bar area in a restaurant may be used for food service, and alcohol may only be served as part of the food service;
• Customers are required to wear face coverings at all times, except when they are seated at their table; and
• Restaurants are responsible for the compliance of their customers, and “shall” be closed if they are not able to ensure customer compliance.

Places of Worship. As of May 27, 2020, religious services and cultural ceremonies are allowed, so long as they are conducted according to the same protocols as described for re-opened businesses in the Order, and follow any mandatory and suggested measures issued by the State for places of worship. This includes, for example, maintaining proper sanitation, screening of employees, social distancing, and face coverings. The State industry guidance for places of worship are available here.

If you have any questions about whether your business is essential or whether it may re-open, and how to navigate the State’s or San Diego County’s requirements, contact one of the authors or your regular counsel at AALRR.