Southern California Health Orders Govern the Ability of Educational Employers to Return Non-Essential Workers to Campus
As school districts, county offices of education, and community college districts (“Educational Employers”) contemplate returning more employees to on-campus operations and preparing for the Fall, restrictions are increasingly presented by local health orders rather than Statewide directives.
The Governor’s March 19, 2020 “Stay at Home” order (click here for our March 19, 2020 Alert) compelled most Californians to stay home, but contained broad exemptions allowing schools and colleges to remain in limited operation. Those exemptions are contained in the State Public Health Officer’s list of designated Essential Critical Infrastructure Workers (based largely on the CISA federal Essential Critical Infrastructure Workers), which, as revised April 28, 2020, included: “Workers supporting public and private . . . K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors.” As such, these exemptions establish some (but not all) operations (and employees) of Educational Employers as exempt from the “Stay at Home” order.
While the Governor has made various informal announcements since March 19 relating to the closure and reopening of schools and colleges, he has opted not to issue any formal order on that topic. The State’s www.covid19.ca.gov website does contain a statement that “higher education” is “not permitted to operate in the State of California at this time,” however, that statement appears untethered to any formal order or enactment.
On April 28, 2020, the Governor announced a 4-stage reopening plan, which contemplated modified school programs reopening as part of Stage 2. As part of that plan, on May 7, 2020, the California Department of Public Health issued a revised “Stay at Home” order, authorizing local health jurisdictions to “begin gradual movement into Stage 2,” with the proviso that “a local health jurisdiction may implement or continue more restrictive public health measures if the jurisdiction’s local health Officer believes conditions in that jurisdiction warrant it.”
Both the California Department of Education (CDE) and the California Community Colleges Chancellor’s Office (CCCCO) are expected to issue reopening guidance shortly. To date, however, no formal statewide guidance has been issued relating to reopening schools and colleges. It is not anticipated, moreover, that such guidance will override local health orders.
Based on the foregoing, all that can clearly be said is that the Statewide “Stay at Home” order allows schools and colleges to remain open for purposes of “distance learning, provision or school meals, or care and supervision of minors to support essential workforce across all sectors,” but this Order is subject to any more restrictive requirements in an applicable local health order.
While there is, therefore, no consistent statewide approach, the Southern California counties addressed below have the following requirements in place, which apply as workers return to on-campus operations:
Los Angeles County
The County of Los Angeles Public Health Order, most recently updated May 29, 2020, leaves some room for interpretation as applied to Educational Employers. The Order does not apply to “government agencies” and their employees, who are exempt from the Order. It is not clear, however, that public education institutions are considered “government agencies” for purposes of the Order.
This is because a separate provision of the Order specifically allows the ongoing operation of “Essential Businesses,” which are specifically defined to include “Educational institutions (including public and private K-12 schools, colleges, and universities) for purposes of facilitating distance learning, providing meals for pickup,” as well as for purposes of performing defined “Minimum Basic Operations,” which include protection of property, safety and sanitation, processing of payroll, and minimum necessary activities to facilitate telework and delivery of services remotely.
In light of this language specific to public educational employers, it is not clear that such employers are subject to the more general provisions applicable to “government agencies.”
Assuming Educational Employers are treated as businesses, effective May 26, 2020, the scope of permissible “business” operations is expanding. The Order now permits reopening by “Non-essential office-based businesses (although telework is strongly encouraged),” subject to conditions that include posting and implementation of specified health protocols for office-based work. This language permits Educational Employers to return office-based workers to campus to an extent not previously authorized.
The Order states generally that all persons over the age of 65 or who have active or unstable health conditions “should” stay at home as much as possible, and “strongly recommends” that employers offer telework to such persons. These are recommendations, however, not requirements.
All persons (including employees) are required to wear cloth face coverings when in contact with others outside their household in both public and private spaces. Further, Educational Employers are required to offer cloth face coverings at no cost to employees (and are to be used by employees) who may come into contact with others in the workplace. The Order additionally requires that non-essential employees in office-based workspaces wear cloth face coverings at all times unless in a private office or walled cubicle. Collectively, these requirements mandate use of cloth face coverings by employees except when in a private office or walled cubicle, or when outside away from others.
Click here for the current Los Angeles County Public Health Order (issued May 29, 2020).
The Orange County Public Health Order does not expand on the State order with respect to on-campus work by Educational Employees.
The Orange County Order contains a general requirement — which applies to employees of Educational Employers — that all persons in the County must wear cloth face coverings outside of their residences when they are not able to maintain at least 6 feet of physical distance from another person outside of their household, subject to limited exceptions for children under 2, and persons with difficulty breathing, difficulty removing a cloth face covering, or a medical or mental health condition or developmental disability that prevents wearing a cloth face-covering.
The Order also contains a “strong recommendation” that all persons maintain 6 feet of physical distance from persons who are not family/household members, including when at work. The Order also contains a “strong recommendation” that persons over the age of 65, or who have serious underlying medical conditions or a compromised immune system, should stay at home consistent with California Department of Public Health Guidance. These are recommendations, however, not requirements.
Click here for the current Orange County Public Health Order (issued May 28, 2020).
San Diego County
The San Diego County Public Health Order does not expand on the State order with respect to on-campus work by employees of Educational Employers.
However, on May 27, 2020, San Diego County Public Health Officer Wilma Wooten issued a County Health Order prohibiting any activities wherein students gather on a public or private school, college, or university campus, except for research-related activities in colleges and universities and where necessary to train students as essential workers.
The Order makes clear that for now, any activities involving gatherings of students, such as graduation or promotion celebrations, are prohibited. Further, until the San Diego County public health order is amended by further guidance or rescinded, schools and colleges in the county will not be able to reopen for in-person instruction, except for research activities or programs training essential workers.
The Order also requires employees of “essential businesses and reopened business” to wear cloth face coverings,” when in the business or within six feet of another person who is not a member of their family or household, subject to exceptions for persons with medical or mental health condition, or a developmental disability, that prevents wearing a face covering.
Click here for the current San Diego County Public Health Order (issued May 29, 2020).
The Imperial County Public Health Order does not expand on the State order with respect to on-campus work by school/college employees.
The Order requires school/college employees to wear face coverings (in conjunction with social distancing and handwashing) when employees are in contact with the public or cannot maintain six feet separation from coworkers “at all times.”
Imperial County is the only Southern California county that has not yet progressed further into Stage 2.
Click here for the current Imperial County Public Health Order (issued May 26, 2020).
In Riverside County, the Board of Supervisors voted on May 8, 2020 to remove all local health restrictions from institutes of higher education, allowing them discretion as to how conduct their operations. At the same meeting, the Board of Supervisors rescinded all then-existing policies requiring social distancing and face coverings.
On May 22, 2020, Riverside County officials reiterated that all K-12 schools shall remain closed until June 19. School officials should note, however, that the Riverside County Public Health Officer’s order of May 9, 2020, provides that individual school districts shall have discretion to determine the “minimum essential personnel as required to support critical functions.”
San Bernardino County
San Bernardino County does not presently have any specific local orders concerning school and college/university closures, and thus is subject to the State order.
While face coverings are not required, on May 29, 2020 the San Bernardino County Public Health Officer issued an order “strongly encouraging” all individuals to wear a facial covering, and explicitly gave all public agencies the discretion to require facial coverings for staff.
Santa Barbara County
The Santa Barbara County Public Health Order does not expand on the State order with respect to on-campus work by school/college employees. However, on May 8, 2020 the Santa Barbara County Public Health Officer modified this earlier order to allow for graduation ceremonies to be conducted via streaming services or in person under certain restrictions, as detailed in the order.
Effective May 26, 2020, all members of the public age 13 and older must wear face coverings when inside government agencies. School/college employees must also wear face coverings when working in public spaces, interacting with the public, or when within six feet of others (including coworkers), with limited exceptions for persons working in stable working groups of 12 or fewer who do not interact with the public. These orders are subject to various exceptions, including for individuals with difficulty breathing, and where specified health and safety risks are presented.
The Ventura County Public Health Order does not expand on the State order with respect to on-campus work by school/college employees.
Under the Ventura County Public Health Officer’s most recent order, dated May 29, 2020, businesses within the County may reopen upon submission of a site-specific prevention plan and registration with the County attesting to their preparedness to safely reopen, consistent with California’s general roadmap to reopening.
Ventura County does not require use of cloth face coverings.
Click here for the current Ventura County Public Health Order (issued May 29, 2020).
Educational Employers are advised to consult their legal counsel as to the interpretation and application of the applicable local public health order to their particular operations, as they contemplate returning more employees to on-campus operations.
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 presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.
©2020 Atkinson, Andelson, Loya, Ruud & Romo