Good Evening Clients and Friends,

Today an order came down from the public health officials in six Bay Area counties ordering “shelter in place.” There have been many questions from our community regarding whether their business constitutes an essential service.

The link below is to the official Shelter in Place Order on the Alameda County website. This document is identical to the Order found on the websites for the other five counties impacted (Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara). Section 10f defines “essential services,” while section 10g defines “minimum basic operations” for those that determine they are essential and will stay open.

Who Qualifies

There are various categories defined in the Order, several of which include those in the general supply chain. For instance, businesses that are allowed to remain open are:

  • Food cultivation, including farming, livestock, and fishing 
  • Provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals 
  • Restaurants and other facilities that prepare and serve food, but only for delivery or carry out 
  • Businesses that ship or deliver groceries, food, goods or services directly to residences 
  • Retail food businesses (ex. grocery stores, farmers markets, convenience stores, etc.)  
  • Companies that supply other Essential Businesses with the support or supplies necessary to operate 

Restrictions on Operations

While these businesses may continue to operate, the Order places restrictions on such operations. “All Essential Businesses are strongly encouraged to remain open. To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements…” Social distancing requirements 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 
  • Coughs or sneezes (into the sleeve or elbow, not hands),
  • Regularly cleaning high-touch surfaces  
  • Not shaking hands 

The Order also states that employees at Essential Businesses may leave their home to “perform work providing essential products and services at an Essential Business or to otherwise carry out activities specifically permitted in this Order, including Minimum Basic Operations.”

It is not business as usual. The Order is expressly intended “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible while enabling essential services to continue, to slow the spread of COVID-19 to the maximum extent possible.” Violations of the Order are classified as misdemeanors punishable by fine, imprisonment, or both. (California Health and Safety Code § 120295, et seq.)

Summary of the Current Situation

Essential businesses, as defined, may remain open with certain safety mechanisms in place. To the extent that employees can work from home and perform their functions, they should do so. To the extent that an employee cannot work from home (ex. line operator), they can work at the facility. However, only to the extent that they have a six-foot zone of safety around themselves, they practice recommended hygiene protocols, and they do not come into physical contact with their co-workers. Please note that Public Health officials have asked the Sheriff and all chiefs of police to ensure compliance as a violation of this Order constitutes an imminent threat to public health.

Please note that this information is current as of 3:00 pm today, March 16, 2020, and, as we have become aware, can change by the hour. We believe that something this severe is likely to stick in its substance. There will likely be clarifications that come out in the days to come. Please check your county public health websites for the most current information. All of them have a section dedicated to the Coronavirus Disease (COVID-19).

While we at SSF are sheltering in place, we continue to work remotely. We are here to talk about any questions or concerns you may have.  Please do not hesitate to reach out to us.

A special thank you to Bill Acevedo from Wendel Rosen LLP on the quick interpretation assistance on this Order and contribution to this article.