On March 19, 2019, the State of California, the County of Los Angeles, and the City of Los Angeles issued similar “Stay at Home Orders” to address the coronavirus disease 2019 (COVID‑19) pandemic. All three orders require that, except for certain exempt activities, all residents must isolate themselves in their residence. On March 21, 2020, the County of Los Angeles issued a revised order that amended and superseded the County’s March 19, 2020 order. California also subsequently issued further guidance in the form of a list of Essential Critical Infrastructure Workers. This updated alert reflects the provisions of the revised County Order and this list.
The orders all exempt various businesses from compliance, but the orders have different scopes. The State Order has the broadest exemptions, with the County and City Orders providing narrower exemptions. For example, under the State Order, shopping malls are still permitted to operate, while under the County and City Orders, indoor shopping malls are required to close. Any business operating in Los Angeles County or the City of Los Angeles is required to comply with the more restrictive County and City Orders. In each case, however, the orders require that individuals are to practice proper social distancing whenever practicable, even when participating in exempt activities.
Failure to comply with any of the orders is a misdemeanor punishable by fine or imprisonment.
I. STATE ORDER
California Governor Gavin Newsom issued Executive Order N-33-20 (the “State Order”) ordering that all California residents heed the California Department of Public Health’s directives to stay home or at their place of residence, except as needed to maintain continuity of operation of the 16 critical infrastructure sectors identified by the Cybersecurity & Infrastructure Security Agency of the U.S. Department of Homeland Security (“CISA”) and to access necessities such as food, prescriptions, and healthcare. The State Order is effective immediately and will remain in effect until further notice.
A. Exempt Businesses
The 16 critical infrastructures sectors (and applicable subsectors) that are exempt from the State Order are the following:
- Basic chemicals
- Specialty chemicals
- Agricultural chemicals
- Consumer products
- Emergency services
- Law Enforcement
- Fire and Rescue Services
- Emergency Medical Services
- Emergency Management
- Public Works
- Financial services
- Depository institutions
- Providers of investment products
- Insurance companies
- Other credit and financing organizations
- Providers of the critical financial utilities and services that support these functions
- Government facilities
- Education Facilities
- National Monuments and Icons
- Election Infrastructure
- Transportation systems
- Highway and Motor Carrier
- Maritime Transportation
- Mass Transit and Passenger Rail
- Pipeline Systems
- Freight Rail
- Postal and Shipping
- Commercial Facilities
- Entertainment and Media (e.g., motion picture studios, broadcast media).
- Gaming (e.g., casinos).
- Lodging (e.g., hotels, motels, conference centers).
- Outdoor Events (e.g., theme and amusement parks, fairs, campgrounds, parades).
- Public Assembly (e.g., arenas, stadiums, aquariums, zoos, museums, convention centers).
- Real Estate (e.g., office and apartment buildings, condominiums, mixed use facilities, self-storage).
- Retail (eg, retail centers and districts, shopping malls).
- Sports Leagues (eg, professional sports leagues and federations)
- Critical manufacturing
- Primary Metals Manufacturing
- Machinery Manufacturing
- Electrical Equipment, Appliance, and Component Manufacturing
- Transportation Equipment Manufacturing
- Defense industrial base
- Natural Gas
- Food and Agriculture
- Healthcare and Public Health
- Nuclear Reactors, Materials, and Waste
- Water and Wastewater Systems
California has, however, provided some additional informal guidance that is seemingly inconsistent with the State Order. For example, despite the State Order indicating that these 16 sectors – including entertainment and media, gaming and lodging, outdoor events, and public activities – are exempt from the stay-at-home order, the State’s COVID‑19 website states that entertainment venues, public events and gatherings, and convention centers are closed. Although the language of the State Order and the information on the State’s COVID website cannot be fully reconciled until clarifying guidance is issued, if a business falls within one of the 16 critical infrastructure sectors and is not listed on the State’s website, it may be reasonable to conclude that the exemption applies under the State Order. For example, dine-in restaurants, bars and nightclubs, entertainment venues, gym and fitness studios, convention centers, or public events and gatherings may not remain open.
That said, California has also published a list of Essential Critical Infrastructure Workers (the “Essential Workers List”) that generally incorporates the guidance in CISA’s March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (“Memorandum”), but also identifies additional categories of exempt workers. The Essential Workers List provides more detail on categories of workers that are exempt as part of certain critical infrastructure sectors and identifies workers in areas of hazardous material and other community-based government operations, as well as other essential functions that are also exempt.
The State Order directs the Office of Emergency Services to take necessary steps to ensure compliance with the State Order, and provides that the State Order is enforceable pursuant to California Law, including Government Code § 8665, which provides that any person that refuses or willfully neglects to obey any relevant lawful order is guilty of a misdemeanor punishable by a fine not to exceed $1,000 or up to six-months imprisonment or both.
II. LOS ANGELES ORDERS
A. County Order
The County of Los Angeles Department of Public Health issued the Safer at Home Order for Control of COVID-19 (the “County Order”). The County Order applies within the County of Los Angeles Public Health Jurisdiction, which includes all cities in Los Angeles County except Pasadena and Long Beach. It prohibits all indoor and outdoor public and private gatherings. And, it further orders all indoor malls, indoor shopping centers, swap meets, flea markets, playgrounds, and non-essential businesses to close. The County Order specifically enumerates the closure of all bars and nightclubs that do not serve food, gyms and fitness centers, movie theaters, drive-in theaters, live performance theaters, concert halls, arenas and stadiums, blowing alleys and arcades, wineries, breweries, and tap rooms that provide tastings. The County Order is effective 11:59 pm on March 19, 2020, through April 19, 2020, though it provides a 24-hour initial grace period to give workers access to workplaces, provided they follow social distancing requirements.
Essential businesses that are part of an indoor mall or shopping center may remain open if the business is accessible to the public from the exterior of the mall or shopping center. Indoor malls and shopping centers are defined as a building with seven or more sales or retail establishments or a series of buildings on a common site, either under common ownership or common control or developed together with seven or more sales or retail establishments.
B. City of Los Angeles
Los Angeles Mayor Eric Garcetti issued Public Order Under City of Los Angeles Emergency Authority: Safer at Home (the “City Order”), which requires Los Angeles City residents to isolate themselves in their homes, subject to certain exceptions, and ordered all businesses in the City of Los Angeles to cease operations that require in-person attendance by workers at a workplace. The City Order is effective 11:59 pm on March 19, 2020, through April 19, 2020, with a 24-hour initial grace period similar to that of the County Order.
Both the LA County and LA City Orders exempt the same 25 categories of businesses, including but not limited to, the following:
- Establishments engaged in the retail sale of food, pet supplies, water, meats, and other household consumer products, including grocery stores, certified farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores.
- Restaurants but only for delivery, drive thru, or carry out
- Hotels, motels, shared rental units and similar facilities
- Banks, credit unions, and related financial institutions, and insurance companies
- Gas stations, auto-supply, mobile auto-repair operations, auto-repair shops (including, without limitation, auto repair shops adjacent to or otherwise in connection with a retail or used auto dealership), and bicycle repair shops and related facilities
- Educational institutions (including public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning, providing meals for pick-up, or performing essential functions (provided that 6-feet of social distancing is maintained)
- Airlines, taxis, ride-sharing services and other private transportation providers providing transportation necessary for activities of daily living
- Professional services such as legal or accounting, when necessary to assist in compliance with legally mandated activities
- Military defense contractors
- Childcare facilities providing services that enable employees exempt under the Order to work as permitted
- Residential facilities and shelters for homeless residents, disabled persons, seniors, adults, children, and animals
- Businesses that supply other Essential Businesses with support or supplies needed to operate
- Healthcare Operations
- Essential Infrastructure
The County Order as revised on March 21, 2020, eliminated an exemption for “media services” that appeared in the original March 19, 2020, version of the County Order and replaced it with an exemption for “journalism activities.” Although the City Order still provides an exemption for media services, this exemption is now superseded by the County Order.
The County’s Order does not prohibit any individual or family from outdoor activities, such as hiking, walking, or shopping at Essential Businesses, including grocery stores and restaurants offering delivery, drive-thru or carry-out service, so long as all persons practice social distancing to the extent practicable.
Likewise, the LA City Order allows people to engage in essential activities, specifically including the following:
- Visiting a health or veterinary care professional
- Obtaining medical supplies or medication
- Obtaining or delivering grocery items
- Providing care for vulnerable persons such as minors, the elderly, dependents or people with disabilities
- Returning to one’s place of residence from outside the city
- Traveling to one’s place of residence located outside the city
1. Healthcare Operations
Healthcare Operations is defined under the County and City Orders to include the following: hospitals, clinics, laboratories, dentists, pharmacies, physical therapists and chiropractors, pharmaceutical and biotechnology companies, other licensed healthcare facilities, healthcare suppliers, home healthcare service providers, mental or behavioral health providers, alcohol and drug treatment providers, cannabis dispensaries, medical or scientific research companies, or any related and/or ancillary healthcare services, manufacturers, distributors and servicers of medical devices, diagnostics, and equipment, veterinary care, and all healthcare provided to animals. The exemption is to be broadly construed to avoid any impact to the delivery of healthcare, broadly defined. The exemption specifically excludes fitness and exercise gyms.
2. Essential Infrastructure
Essential Infrastructure as defined under the County and City Orders includes, but is not limited to, public health, public works, construction, construction of commercial, office and institutional buildings, construction of housing, airport operations, port operations, water, sewer, gas, electrical, oil extraction and refining, road and highways, public transportation, solid waste collection and removal, flood control and watershed protection, internet and telecommunications systems (including the provision of essential global, national, local infrastructure for computing services, business infrastructure, communications, and web-based services), and manufacturing and distribution companies deemed essential as part of the Essential Infrastructure supply chain, provided they carry out those services in compliance with social distancing practices to the extent practicable.
Failure to comply with both the County and City Orders is a misdemeanor subject to fines and imprisonment, and both Orders urge law enforcement to enforce the Orders. The County Order is enforceable pursuant to Los Angeles County Code § 11.02.080, which provides for a punishment of a fine of up to $500 or imprisonment in the Los Angeles County jail for up to six months, or both. The City Order is enforceable pursuant to Los Angeles Administrative Code §§ 8.77 and 8.78, which provide a punishment of a fine of up to $1,000 or imprisonment up to six months, or both.
III. BAY AREA ORDERS
The State, County, and City Orders follow what has been previously done in the Bay Area. Seven Bay Area counties, including Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Santa Cruz, have also issued shelter in place orders. These orders became effective on March 17, 2020, at 12:01 A.M. and extend through April 7, 2020, at 11:59 P.M. The orders are substantially the same and closely mirror the orders from Los Angeles City and County. All residents are required to remain at home unless it is to engage in essential activities, which includes but is not limited to, obtaining household and medical supplies, visiting a health care professional or obtaining supplies needed to work from home. All businesses, except Essential Businesses, are directed to cease all activities except Minimum Basic Operations. Businesses defined as Essential Businesses are substantially the same as the 25 categories of business exempted in the Los Angeles County orders. Businesses that are non-essential are permitted to maintain Minimum Basic Operations, which includes maintaining the value of inventory, processing of payroll and employee benefits, ensuring security of company facilities, and ensuring that employees can work remotely from their residences.
This alert has been updated to address the amended County Order issued on March 21, 2020, and the Essential Critical Infrastructure Workers listing issued by California. Updated information is italicized.
As the COVID-19 situation is dynamic, the above guidelines are subject to change. Please contact your DLA Piper relationship partner with any questions or for more information.
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