Navigating the Morass of Guidance Applicable to California Businesses
Update: On August 31, 2020, the Blueprint for Safer Economy replaced the County Monitoring List for determining what businesses can and cannot open. The Blueprint utilizes a more user friendly four-tiered color system (i.e., purple [most strict guidance], red, orange, and yellow [least strict guidance]), and is updated every Tuesday. To check the status of your county and see allowable activities, please visit the Blueprint for Safer Economy webpage. Please note that businesses are still subject to California Industry Guidance, federal law, and local guidance, orders, and ordinances.
Update: On July 24, 2020, California released the Employer Playbook for a Safe Reopening. The Employer Playbook provides guidance for employers to help them plan and prepare for reopening their business and to support a safe, clean environment for workers and customers. For more information, please see: California’s New “Employer Playbook” Helps Employers Prepare for and Respond to COVID-19 Situations.
In the past few months, federal, state, and local governments have rapidly and constantly proliferated laws, orders, and guidance for conducting business in light of COVID-19. Unless a business has personnel dedicated to monitoring the ever-changing legal requirements related to the pandemic, it can be terribly confusing and difficult to keep track of this morass of information. The purpose of this article is to identify the California guidance, federal laws and federal agency guidance, and local orders, ordinances, and local public health agency guidance, applicable to businesses and to explain the relationship between them.
California Industry Guidance: California industry guidance is available on the California Resilience Roadmap Website. Every business in California must follow the applicable guidance, and the state has released guidance for 27 different industries. More than one set of industry guidance might apply to a single business. For example, if a business consists of an office and a warehousing facility that delivers items, the business might follow the Guidance for Office Workspaces, the Guidance for Logistics and Warehousing Facilities, and the Guidance for Delivery Services.
Additional industry guidance is available for businesses in California counties with attestations. What is an attestation? When a county meets certain criteria as decided by the California Department of Health, it may fill out a COVID-19 County Variance Attestation Form to reopen 11 more industries, also found on the California Resilience Roadmap Website. A list of counties that have successfully obtained a variance can also be found on the COVID-19 County Variance Attestation Form website. This website is updated regularly. Such counties are known as “counties with attestations” as opposed to “counties without attestations.”
As of July 13, 2020, counties with attestations were required to close indoor operations for the following sectors: dine-in restaurants, wineries and tasting rooms, movie theaters, family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades), zoos and museums, and cardrooms. Keep in mind that counties without attestations cannot have these industries open at all. Also, as of July 13, 2020, all counties (with or without attestations) had to close indoor and outdoor operations for bars, brewpubs, breweries, and pubs unless they offer sit-down, outdoor dine-in meals, in which case alcohol can only be sold in the same transaction as a meal. This information is also available on the California Resilience Roadmap Website.
Counties with especially high counts of COVID-19 are being monitored by the California Department of Health. The criteria on what is being monitored is available on the County Data Monitoring website, and specific county monitoring data is available on the County Data Chart. On the County Variance Info Website, you’ll notice a map of California. The map is updated almost every morning and tracks which counties have been on the monitoring list and whether they have been on the county monitoring list for more than three days. On the County Variance Info Website, you’ll also notice a list labeled “Affected counties as of [date]”. This list is a list of counties on the County Data Monitoring List for at least three consecutive days. This list is updated less frequently and ordinarily around 1:00 pm after Gov. Gavin Newsom’s Noon News. If a county remains on the County Data Monitoring List for at least three consecutive days, the county must shut down the following industries or activities unless they can be modified to operate outside or by pick-up: gyms and fitness centers, places of worship and cultural ceremonies (like weddings and funerals), offices for non-critical infrastructure sectors, personal care services (like nail salons, body waxing and tattoo parlors), and shopping malls.
Local Guidance, Orders, and Ordinances: California businesses must comply with county, city, and local orders. These orders may harmonize with, or be more strict than, California Industry Guidance. For example, San Diego has a Public Health Order, which requires, amongst other things, for businesses to “conduct temperature screening of all employees and prohibit entry to the workplace of employees with a temperature of 100 degrees or more… .” This is more strict than California guidance which generally allows employees to take their own temperatures at home and requires employees with a temperature of 100.4 degrees or more stay at home. As another example, San Francisco has a Stay Safer at Home Order, which requires, amongst other things, for businesses to accept cash, allow patrons to use reusable bags, and prohibits cancellation fees for missed appointments due to COVID-19-related reasons.
Additionally, some California counties and cities have enacted ordinances requiring employers who are otherwise exempt (e.g., businesses with more than 500 employees and small businesses) from the federal Families First Coronavirus Response Act (FFCRA) to provide paid leave to their employees for certain COVID-19-related reasons. For example, the San Jose Paid Sick Leave Ordinance requires nearly all employers exempt from FFCRA to provide paid leave benefits to their employees for four reasons. As another example, the Oakland Paid Sick Leave Ordinance requires nearly all employers with more than 500 employees to provide paid leave benefits to their employees for 11 reasons.
Federal Laws and Guidance: California businesses must also follow federal guidance, which is ordinarily released by the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Department of Labor. As referenced above, California businesses must also comply with FFCRA.
Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.