03.19.2020

In response to the spread of the Coronavirus (“COVID-19”), eight different counties and the City of Fresno each issued orders to slow the spread of COVID-19.  This Alert highlights the impact of these orders on ongoing operations for cities, counties, housing authorities, transit agencies, California administrative agencies, water districts, and other special districts (“public entity employers”).

Seven Bay Area Counties Release Virtually Identical “Shelter in Place of Residence” Orders

In an effort to slow the spread of COVID-19, the Chief Health Officers of San Francisco, Santa Clara, San Mateo, Marin, Contra Costa, Alameda, and Santa Cruz Counties, as well as the City of Berkeley (which is within Alameda County), each issued orders requiring residents to “shelter in their places of residence” starting at 12:01 a.m. on March 17, 2020, through Tuesday, April 7, 2020, unless rescinded or extended.  Residents of the seven affected counties were given only twelve hours’ notice before the orders took effect.  In contrast to prior guidance from public officials, these are mandatory orders that have the force of law.  Violation of the orders is a misdemeanor punishable by a fine and/or jail time.

First responders, emergency personnel, court personnel, and law enforcement personnel are categorically exempt from the orders.  All other persons within the seven affected counties may leave their residences only to provide or access “Essential Activities,” “Essential Governmental Functions,” or “Essential Businesses”; perform “Minimum Basic Operations”; or to perform operations and maintenance of “Essential Infrastructure” –  as defined in the orders. 

Of particular note for public entity employers:

1.  The orders exempt persons either performing or accessing “Essential Governmental Functions.”

Governmental entities, including public entity employers, must designate what constitutes “Essential Governmental Functions,” which are not clearly defined in the orders.  Defining this functions is a discretionary act left to each governmental entity.  We advise that any such designation be made in writing.  We recommend that public entity employers designate emergency authority to the appropriate persons within their agency as soon as possible in order to afford speed and agility in responding to the changing COVID-19 situation.

Governmental entities, including public entity employers, must “identify and designate appropriate employees or contractors to continue providing and carrying out any Essential Governmental Functions.”  We advise that written confirmation of this designation be provided to such employees or contractors, and that the employees/contractors carry that document and their public entity employer identification to establish their credentials as providers of Essential Governmental Functions, which will serve as evidence of the propriety of their being away from their residences during the shelter in place orders.  Moreover, the orders require that the performance of Essential Governmental Functions be performed while observing “Social Distancing Requirements,” which are defined below.

2.  The orders also exempt employees performing “Minimum Basic Operations.”

“Minimum Basic Operations” include the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, as well as the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

It is not clear whether the exemption for “Minimum Basic Operations” applies to public entity employers.  Rather, public entity employers should consider whether payroll, human resources, information technology, and other similar functions, should, instead, be designated as “Essential Governmental Functions” and have that designation reduced to writing (see above).

3.  The order also allows for personnel to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure.”

For purposes of this order, individuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure,” which includes “public works construction.”  We interpret the wording of the exemption to mean that three categories of work – operations, maintenance and construction – are exempt from the order.

Public Contract Code § 22002(c) defines “public project” to include any “[c]onstruction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility.”  Our opinion is that all of these categories are encompassed within the activities allowed under the orders.

“Essential Infrastructure” also includes construction of housing (in particular affordable housing or housing for individuals experiencing homelessness), water, sewer, gas, electrical, roads and highways, and public transportation.  The orders also emphasize that the “Social Distancing Requirements,” which are defined below, be maintained as much as possible.  [Question:  Are we providing recommendations that are consistent with the Facilities Practice Group?]

4.  Individuals not otherwise exempt from the orders may work from home. The orders state that such employees may leave home to “obtain supplies they need to work from home.”

5.  Individuals may also engage in “Essential Activities” and may additionally engage in “Essential Travel” in order to provide or access Essential Governmental Functions, Essential Businesses, Essential Activities, or Minimum Basic Operations.

6.  The orders require that these activities be performed in accordance with Social Distancing Requirements to the extent possible.

“Social Distancing Requirements,” as defined in the orders, are to include:

• Maintaining at least six foot social distancing from other individuals;
• Washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer;
• Covering coughs or sneezes into the sleeve or elbow, not with the hands;
• Regularly cleaning high-touch surfaces; and
• Not shaking hands.

7. Even with the various exemptions, individuals who are at high risk of severe illness from COVID-19, as well as those who are sick, are “urged” to stay home to the extent possible, other than as needed to obtain medical care. More information on Governor Newsom’s call for home isolation for seniors 65 and over and persons with chronic conditions can be found here.  

The City of Fresno Issues a Similar “Shelter in Place of Residence” Order as the Bay Area

Similar to the orders discussed above, the City of Fresno issued an order requiring residents to “shelter in their place of residence” (“Fresno Order”) starting at 12:01 a.m. on March 19, 2020, through March 31, 2020, though the order is subject to extension.  The Fresno Order includes much of the same language written in the orders issued in the Bay Area.  The Fresno Order states that “All persons may leave their residences only for Essential Activities, Essential Governmental Functions, or to operate Essential Businesses ….”  The Fresno Order contains virtually identical definitions for “Essential Businesses,” “Minimum Basic Operations,” “Essential Infrastructure,” and “Social Distancing Requirements” as the orders in the Bay Area.

However, the Fresno Order defines “Essential Government Functions” as “all services needed to ensure the continuing operation of the government agencies and provide for the health, safety and welfare of the public.”  In addition, unlike the orders issued in the Bay Area, the Fresno Order does not have the force of law.  Hence, violations of the Fresno Order are currently not a criminal offense.

Because the Fresno Order is very similar to ones issued in the Bay Area, the same information discussed above generally applies to public employer entities operating in Fresno.

Additional information about the Fresno Order can be found here.

Orange County Issues a Public Health Order

The County Health Officer for Orange County, California, has issued an order (“Orange County Order”) that will have a broad impact on Orange County residents and employers.  The Orange County Order, which went into effect immediately on March 17, 2020, will remain in effect until 11:59 p.m. on March 31, 2020.  The Orange County Order is not as extensive or individually restrictive as the “shelter in place” orders in place for the Bay Area.  Like the orders issued in the Bay Area, the Orange County Order has an enforcement mechanism, and thus, violating the Orange County Order is a criminal offense.  Additionally, there are a number of important provisions that public entity employers should note:

1.  Public and private gatherings of any number of people outside of a household, including at work, are prohibited.

Gatherings are defined as “any event or convening that brings together people in a single room or single space at the same time, such as an auditorium, stadium, arena, large conference room, meeting hall, cafeteria, or any other indoor or outdoor safe.”  However, the Orange County Order does not prohibit public entity employers from operating within Orange County, so long as they operate in accordance with the social distancing guidelines established by the California Department of Public Health, which provide that people maintain a distance of at least six feet between each other except family members. 

Also, the Orange County Order does not prohibit activities such as going to work or performing essential services.  The Orange County Order does not clearly explain what “performing essential services” means, but it states that in accordance with state guidance, there are certain activities that are “essential to the functioning of [Orange County]” that must continue.  Presumably, services provided by public entity employers, and potentially any businesses that support them, are likely essential to the functioning of Orange County.  Thus, this likely means that the activities of public entity employers and their supporting entities are not prohibited by the Orange County Order.

2.  Individuals age 65 or older, as well as those with serious chronic medical conditions (heart disease, lung disease, diabetes, etc.) or a compromised immune system are “strongly recommended” to remain at home.

3.  Individuals exhibiting mild to moderate symptoms of COVID-19 are “strongly recommended” to isolate at home, except to seek medical care.

All Orange County public entity employers must utilize social distancing measures, engage in increased sanitation and utilize telecommuting, where possible.  The Orange County Order also recommends that all residents are to heed to any orders and guidance of the state and local health officials related to COVID-19.

Also, it is important to note that the Orange County Order has stated that employers, including public entity employers, may not require medical verifications from employees who are “sick with acute respiratory illness” to either validate their illness or return to work.  We find this specific mandate to be inconsistent with existing state and federal law.  Thus, we advise you to speak with one of the attorney authors of this article or with your designated legal counsel regarding this issue.

Additional information about the Orange County Order can be found here.  

At this point in time, the orders are limited to the eight counties referenced above and the City of Fresno.  However, California public entity employers outside of the affected counties are, nevertheless, encouraged to plan now in the event similar orders are issued in additional counties or on a statewide basis in the coming days.  In a Facebook Live stream on Monday night, Governor Newsom promised to take action “to bring the rest of California into alignment” with the orders issued in the Bay Area, though he did not expand upon how he would do so or specifically what would be included in any such measure.  Particular early steps would include delegating authority to a designee to designate essential functions and personnel and commencing the process of identification and designation.  Public entity employers should additionally consider whether services provided by contractors and support entities, rather than their own employees – such as professional services (including legal services) or continued public works operations, maintenance, and construction – are also essential governmental functions that should be included within these designations.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not
responsible for inadvertent errors that may occur in the publishing process.
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