On March 16, 2020, the City and County of San Francisco Department of Public Health ordered a Shelter in Place, effective 12:01 a.m. on March 17, 2020. Five other counties — Santa Clara, San Mateo, Marin, Contra Costa, and Alameda — issued similar directives released at the same time, ordering 6.7 million people to stay home and all “non-essential” businesses to close.
Building on the general understanding that the Coronavirus 2019 Disease (“COVID-19”) is easily transmitted and it is essential that the spread of the virus be slowed to protect the healthcare system from being overrun, the Orders require all individuals to “shelter in place” in their homes, except for performing certain “essential” activities, providing “essential” business and government services, or performing “essential” public infrastructure construction.
A few key aspects of the San Francisco Order, which is mirrored in the other five counties’ orders, are:
- For the limited circumstances where individuals are allowed to leave their homes, they are to maintain certain “social distancing requirements,” including keeping 6 feet distance from others, washing hands with soap and water for 20 seconds, covering coughs and sneezes, and avoiding touch with others.
- Anyone with a medical condition should stay home to the extent possible.
- San Francisco employers that do not provide “essential” businesses or government services should take all steps to allow employees to work remotely.
- No individual who is sick may leave the home, except to seek or receive medical care.
- All travel, including by foot, bicycle, scooter, motorcycle, car, and public transit, is prohibited, unless for “essential travel” or to perform “essential activities,” and then, people must comply with the social distancing requirements.
“Essential activities” include those activities essential to health and safety of the person or their family or household members (including pets), obtaining necessary services or supplies, engaging in outdoor activities compliant with Social Distancing Requirements, performing work providing essential products and services (including “Healthcare Operations” and “Essential Infrastructure”), and to care for a family member or pet in another household.
“Essential businesses” are defined to include:
- Healthcare operations, including hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare services providers, mental health providers, veterinary care, or any related and/or ancillary healthcare services, but not fitness, gyms, or other exercise facilities.
- Grocery stores, farmers’ markets, food banks, convenience stores, and other retail grocery and non-grocery stores that sell products for safety, sanitation, and essential operation of residences.
- Food cultivation.
- Businesses that provide food, shelter, and social services.
- Media services.
- Gas stations and auto-supply, repair, and related.
- Banks and financial institutions.
- Hardware stores.
- Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, essential activities, and essential businesses.
- Businesses providing mailing and shipping services, including post office boxes.
- Educational institutions — including public and private K–12 schools, colleges, and universities — for purposes of facilitating distance learning or performing essential functions, provided that social distancing of 6 feet per person is maintained to the greatest extent possible.
- Laundromats, dry cleaners, and laundry service providers.
- Restaurants and other facilities that prepare and serve food, but only for delivery or carry out. Schools and other entities that typically provide free food services can continue via pick-up or takeaway.
- Businesses that supply products needed for people to work from home.
- Businesses that supply other essential businesses with the support or supplies necessary to operate.
- Businesses that ship or deliver groceries, food, goods, or services directly to residences.
- Airlines, taxis, and other private transportation providers providing transportation services necessary for essential activities and other purposes expressly authorized in this Order.
- Home-based care for seniors, adults, or children.
- Residential facilities and shelters for seniors, adults, and children.
- Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
- Childcare facilities providing services that enable employees exempted in this Order to work as permitted, with certain mandatory conditions.
“Essential infrastructure” includes, but is not limited to, public works construction; construction of housing; airport operations; water, sewer, gas, and electrical; oil refining; roads and highways; public transportation; solid waste collection and removal; internet and telecommunications systems, with compliance with social distancing requirements to the extent possible.
In certain of these categories, what qualifies as “essential” is unclear and open for interpretation, but subject to the discretion and determination of the health officials from the County issuing the particular order. For example, “14. Businesses that supply products needed for people to work at home,” and “15. Businesses that supply other businesses with the support or supplies necessary to operate” are both seemingly very broad. Given the goals and breadth of the Orders, however, companies should be prepared for health officials to take a strict and narrow interpretation of these categories.
Violation of or failure to comply is punishable as a misdemeanor punishable by fine, imprisonment, or both.
The Orders will continue to be in effect until 11:59 p.m. on April 7, 2020, unless extended, rescinded, superseded, or amended.
Given the similarities among the six counties, it is anticipated that additional counties will follow with similar, if not identical, shelter in place orders in the near future.
For those businesses deemed “non-essential,” we recommend an immediate evaluation of contractual obligations and insurance coverages to determine whether immediate action is required under the relevant notice, force majeure, or other contractual provisions. For those “non-essential” employers, we recommend taking steps to enable your employees to work from home. If you have employees who are unable to work from home, employers should consider whether to allow those employees to use sick leave, vacation, paid time off, or unpaid time off during the shelter in place order. For employers considering furloughs or layoffs, we recommend reaching out to counsel to ensure compliance with applicable state and federal laws.