California Governor Newsom Calls for Senior and At Risk Californians to Self-Isolate and Directs Business Closures

In an effort to increase social distancing in response to the ongoing COVID-19 pandemic, on March 15, 2020, California Governor Gavin Newsom held a news conference in which he issued an executive order calling for the home isolation of all individuals who are 65 and older, as well as individuals with chronic health conditions. There are 13 task forces currently working on logistics with respect to the implementation of this order.

Newsom said that there are currently 5.3 million Californians age 65 and older, and that a number of them are still in the workforce. His direction, he said, is for those older workers to stay home.

He also directed all bars, nightclubs, wineries, and brew pubs to close, as they are considered nonessential functions during the current health crisis. Restaurants are directed to reduce their current occupancy by half and to require social distancing within those spaces. (Some cities, such as Los Angeles, are banning in-room dining entirely.) He noted there is “some flexibility in that space” and that state officials are evaluating the capacity to do more.

This is a directive; its guidance is the same as the social distancing guidance contained in California Executive Order N-25-20, which limits social functions to no more than 250 people and gatherings of vulnerable populations at higher risk for severe illness from COVID-19 to no more than 10 people. The recent public health measures have been positively received, and it is expected that they will be socialized in real time. Newsom emphasized that he was not overly concerned about the enforcement of the executive orders because Californians have been complying well with public health directives. He stated that while he was empowered to issue broader orders, and could establish a framework of martial law, he did not deem such action necessary at this time. He reiterated multiple times his expectation that the directives would be followed. If they aren’t followed, he said, “We have the capacity to enforce it with a signature; it is that simple.”

Newsom also responded to questions regarding healthcare workers who are over the age of 65. While he said he would provide further information on the number of employees who are in this demographic and working in the healthcare industry, he reasserted that, broadly, the directive includes all Californians.

Thus, it appears that the latest executive order is permissive—until it isn’t, due to lack of compliance. With respect to the enforcement of the executive order’s terms, the governor made clear that the state would compel compliance, if necessary. At present, Newsom has not given direction to law enforcement with respect to compliance.

Newsom further indicated that the state was evaluating a number of options, including a recent federal package and California’s unemployment and disability insurance programs, to support employees who have to isolate at home. There was no mention of employers being required to pay employees while they are on home isolation.

City of Los Angeles

Los Angeles, California, Mayor Eric Garcetti issued an emergency order on March 15, 2020, in line with Governor Newsom’s directives aimed at slowing the spread of the novel coronavirus. Among other things, the order places a moratorium on evictions for renters; Garcetti is considering whether commercial evictions can be suspended as well. In addition, the order provides the following:

• To prevent people from gathering in close proximity, all bars and nightclubs are closed. Inside dining is prohibited in all restaurants and retail facilities that serve food. Takeout, delivery, and drive-through service are allowed.
• Grocery stores, pharmacies, and food banks are exempted from the order.
• Movie theaters, performance venues, gyms, fitness centers, arcades, and bowling alleys are closed to the public.
• Houses of worship are urged to limit gatherings on their premises.

The order became effective at midnight on March 16, 2020, and will remain effective until March 31, 2020, unless rescinded or extended.

Los Angeles and San Diego Counties

Meanwhile, Los Angeles County and San Diego County, which are the state’s two largest counties, ordered bars to close and restaurants to stay open only for pickup, drive-through, or delivery orders. The orders also require the closure of gyms, fitness centers, movie and performance theaters, bowling alleys and arcades. Gatherings of 50 people or more are barred, and social distancing and other precautions are required.

The orders do not apply to grocery stores, retail stores, pharmacies, places of transit, hospitals, or health care facilities. The Los Angeles order exempts schools, while the San Diego order applies to all public or private schools.

Both orders go into effect at 12:00 a.m. on March 17, 2020, until at least March 31, 2020.

Contra Costa, Santa Clara, San Mateo, San Francisco, Alameda, Santa Cruz, and Marin Counties; City of Berkeley

On March 16, 2020, seven counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Santa Cruz—as well as the City of Berkeley, issued the same order, requiring residents to stay at home and go outside only for “essential activities,” such as obtaining food and medicine, seeking medical care, or obtaining supplies needed to work from home, for themselves or for others. The order also requires all residents to work from home unless they provide essential services such as public safety, sanitation and medical services.

All businesses, with the exception of “essential businesses” and government functions, are required to cease all activities other than those comprising “minimum basic operations.”

Essential businesses include:

• Healthcare operations and essential infrastructure;
• Grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores, and other retail stores supplying grocery and non-grocery items, including pharmacies;
• Food cultivation, including farming, livestock, and fishing;
• Businesses that provide food, shelter, and social services to economically disadvantaged or otherwise needy individuals;
• Newspapers, television, radio, and other media services;
• Gas stations and auto-supply, repair and related facilities;
• Banks and related financial institutions;
• Hardware stores;
• Plumbers, electricians, exterminators and other safety, sanitation and essential operations of residences, essential activities, and essential businesses;
• Mailing and shipping services;
• Educational institutions;
• Laundry services, including laundromats and dry cleaners;
• Restaurants, but only for delivery and carry out;
• Businesses that supply products needed for people to work from home or that supply other essential businesses with the support or supplies necessary to operate;
• Businesses that ship or deliver groceries, food, goods, or services to residences;
• Airlines, taxis, and private transportation providers providing transportation services necessary for essential activities;
• Home-based care and residential facilities and shelters;
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities; and
• Childcare facilities (with restrictions).

Individuals also may leave their residences to provide work necessary to “essential infrastructure,” such as public works construction, construction of housing, airport operations, utilities (including internet and telecommunications), roads and highways, oil refining, public transportation, and sanitation. Individuals working in essential infrastructure must follow social distancing requirements.

Also excluded are all first responders, emergency management personnel, emergency dispatchers, court personnel, law enforcement, and others working for or to support essential businesses.

Entities that do not meet an exception are limited to “minimum basic operations,” which consist of the minimum necessary activities required to protect inventory, ensure security, process payroll and employee benefits, and facilitate the ability of other employees to work from home. Anyone engaging in minimum basic operations must follow social distancing protocols.

The order applies to any for-profit, non-profit, or educational entities.

All gyms and bars will have to close. All travel, including on foot, bicycle, scooter, motorcycle, automobile, or public transit, except “essential travel” and “essential activities” is prohibited.

The order becomes effective at 12:01 a.m. on March 17, 2020 and will continue until 11:59 p.m. on April 7, 2020, or until it is extended, rescinded, superseded, or amended.

Law enforcement is authorized to enforce the order. While failure to comply with the law is a misdemeanor, San Francisco Police Department Assistant Chief Michael Redmond said that when it comes to issuing citations to enforce the city’s shelter-in-place order, they will use enforcement as a last resort.

Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar program.