Written by Susan Kohn Ross

The most recent order by the State of California of widespread impact was issued on November 19, 2020 and was discussed here. It was followed on the 25th by one dealing with outdoor operations only. Responding to the earlier statewide order, various counties and cities have now issued their own orders, all further restricting permitted activities. One helpful point is when it comes to office supported business operations, the restrictions are fairly consistent.

Looking first at San Francisco, Santa Clara, San Diego and Alameda Counties, each now holds itself at the purple tier, and so the restrictions are generally consistent with what is being required by the State’s order. The largest city in each county has also issued its own order or issued an order jointly with the county, and these, too, are generally consistent with the county and state orders. Of course, the Santa Clara ban on professional sports was widely covered in the general press this last weekend, since it will force the San Francisco 49ers football team to relocate in order to train and also play its two remaining home games. Santa Clara also imposed quarantine restrictions if one travels more than 150 miles outside the county. These location specific changes make clear why it is so important to check to identify the latest laws and regulations which apply where your business is located, and not rely on broad generalities.

On November 27, 2020, Los Angeles County issued its own new public health order which further limits the activities permitted within the County, except as relates to Pasadena and Long Beach (and then only because they have their own public health agencies). The new order took effect on Monday, November 30, and remains in effect until December 20, 2020 (the day before the statewide order expires). Pasadena and Long Beach each issued their own orders which read quite similar to what the County published, with the exception that while Long Beach continues the exemption for minimum basic operations for non-essential businesses (see further details below), Pasadena does not!

While the new L.A. County Order does say that all public and private gatherings with individuals outside one’s household are prohibited (and some counties permit up to 3 families to gather, and others limit the maximum number of people), the L.A. order does not redefine gatherings. Of course, the recommendation is that when outside your home, you should wear a face covering over your nose and mouth. When the latest order is read as a whole, it does not directly address anything office related, and so the order issued last week by the County which limits both essential and non-essential businesses to 25% maximum occupancy remains the rule, and when it comes to non-essential businesses, those who are permitted into the office should only be those needed for Minimum Basic Operations:

Operators of businesses that are required to cease in-person operations may conduct Minimum Basic Operations, which means:
(a) The minimum necessary activities to maintain and protect the value of the business’s inventory and facilities; ensure security, safety, and sanitation; and process payroll and employee benefits;
(b) The minimum necessary activities to facilitate the business’s owners, employees, and contractors being able to continue to work remotely from their residences, and to ensure that the business can deliver its services remotely.

The latest L.A. County order imposes additional restrictions on occupancy by category, and all require face covering, distancing and infection control; the relevant maximum occupancy percentages are (and these percentages differ slightly by geographic location throughout the State, even while jurisdictions continue to acknowledge the statewide order governs):

Essential retail – 35%
Non-essential retail – 20%
Personal care services – 20%
Libraries – 20%
Fitness centers operating outdoors – 50%
Museums, galleries, zoos, aquariums, and botanical gardens operating outside – 50%
Mimi-golf, batting cages, and go-kart racing operating outdoors – 50%

Outdoor recreation requires face coverings (except for swimming) and social distancing, and gatherings involving individuals outside one’s household are banned, those which are permitted are all limited to 50% occupancy.

Beaches, trails, parks, running, biking, walking, swimming, golf courses, tennis courts, pickleball, archery ranges, skate parks, bike parks, and community gardens are all mentioned. Swimming pools (indoor and outdoor) must be closed, except for regulated lap swimming (one swimmer per lane). When it comes to drive-in movies or events and car parades, the occupants of the vehicle must be from one household.

Schools and day campuses may remain open. If there is an outbreak of 3 or more cases over 14 days, the school should close for 14 days. However, child care/day care remains permitted, as do institutes of higher education, youth sports (conditioning and skill building only) and professional sports (spectator free).

Ordered closed outright are playgrounds (other than those involved with child care or at schools), cardrooms, bars, clubs and lounges, theaters, spectator performances/sporting events, bowling alleys and arcades. Regarding dining, restaurants, bars, breweries and wineries must remain closed for in-person dining and drinking, but may remain open for pick-up, delivery and take-out. Plus, wineries and breweries may also remain open for retail sales at 20% occupancy.

One notable difference from the original November 19th order is the subsequent L.A. County order sets the curfew between 10:00 a.m. and 5:00 a.m. (not the 6:00 a.m. in the order from the 19th), and that curfew continues to apply.  Displaying yet another difference between counties, in some counties take-out is permitted 24 hours per day.

The latest version of each of L.A. County’s industry protocols can be found here. Some have been updated recently, so make sure you know how your operations are impacted by any changes.  Similarly, Santa Clara County has issued a number of topic specific notices which can be found here.

The basic rule of interpreting these orders remains the same: read the statewide order first, then the county order and then the city order. Whichever one contains the most restrictive requirements is the one most prudent to follow and that applies even if you are subject to more than one protocol because of the nature of your business operations. If in doubt, call your favorite MSK attorney or reach out to us at reopen@msk.com.