On March 19, 2020, governor of the state of California, Gavin Newsom, issued Executive Order N-33-20 (California Executive Order), effective immediately until further notice. This California Executive Order requires all individuals living in the state of California to stay home, except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/critical-infrastructure-sectors. These sectors include: (1) chemical; (2) commercial facilities; (3) communications; (4) critical manufacturing; (5) dams; (6) defense industrial base; (7) emergency services; (8) energy; (9) financial services; (10) food and agriculture; (11) government facilities; (12) health care and public health; (13) information technology; (14) nuclear reactors, materials, and waste; (15) transportation systems; and (16) water and wastewater systems. Each of those sectors, as outlined in the federal guidelines outlined on that website, includes numerous types of businesses, and employers should consult the guidelines with legal counsel in assessing whether their operations fall within one of the exceptions. The supply chain will continue to allow access to such necessities as food, prescriptions, and health care. People may leave their homes to obtain or perform the functions above, or to facilitate authorized necessary activities.
Minutes before the state of California instituted the California Executive Order, Los Angeles County and Los Angeles City officials issued an emergency “safer at home” order (L.A. Order) imposing a temporary prohibition of events and gatherings of 10 persons or more and closure of nonessential business to further restrict and limit the gathering of persons in order to slow the spread of COVID-19. The L.A. Order expands upon a March 16, 2020, Health Office Order that imposed the following measures: prohibiting all indoor and outdoor public and private events where 50 or more people were expected to be in attendance; requiring all permanent food facilities to limit services to delivery, pick-up for take-out dining, or drive-through; and closure of bars and nightclubs, gyms and fitness centers, theaters, bowling alleys, and arcades. The L.A. Order does not apply at all to: (1) health care operations, which includes hospitals, clinics, laboratories, dentists, pharmacists, medical cannabis dispensaries, veterinary care, etc. (this category does not include exercise or fitness gyms); or (2) “essential infrastructure,” which includes public health, public works, construction of housing (in particular affordable housing), airport operations, water, sewer, Internet, telecommunications, and manufacturing and distribution companies deemed essential to the supply chain of those industries. In addition, the L.A. Order also provides exemptions regarding closure of essential businesses which includes banks, grocery stores, food supply stores, hardware stores, media outlets, mail and shipping, laundromats, take-out and drive-through restaurants, and services such as plumbers, electricians, hotels, and the like. As with the California Executive Order, the L.A. Order’s list of exempt business categories is broad, and employers should consult with legal counsel and the text of the order itself when determining whether they fall within an exemption.
The L.A. Order became effective at 11:59 p.m. on Thursday, March 19, 2020, but provides a 24-hour exemption for employees and employers of nonessential businesses to access their workplaces to gather belongings, so long as social distancing requirements are followed.
Implications for employers
Both the California Executive Order and the L.A. Order are self-regulating measures instructing Californians to stay home or at their place of residence, except for essential purposes.
The statewide restriction impacts nearly 40 million people and follows similar edicts previously issued in counties and communities covering about half of the state’s population. Employees of businesses deemed essential are permitted to work outside the home. However, California businesses that do not fall within the exemptions that are specified in the California Executive Order must close their physical work spaces. Amid abrupt temporary closures of establishments and suspended operations, there is no one-size-fits-all action plan, but California employers are empowered to consider the following immediate steps to aid their employees: (1) implement remote work arrangements; (2) consider implementing emergency paid leave policy; and (3) educate employees on the variety of aid packages, including state benefits, paid sick leave, and Families First Coronavirus Response Act (H.R. 6201) for employers with fewer than 500 employees.
Employers taking action in response to these orders should also keep in mind their applicable Worker Adjustment and Retraining Notification (WARN) and CA WARN obligations and the recent California Executive Order modifying those obligations on a state level, addressed in our blog post here. The California Employment Development Department (EDD) also has a web page with resources such as explanations of disability and unemployment benefits that may apply, available here.
We will continue to keep you apprised of any updates. If you are unsure whether your business or company falls under an exemption to the California Executive Order or L.A. Order, please contact our offices immediately to discuss your options. To speak with a Reed Smith employment lawyer concerning any issue related to the orders and the COVID-19 pandemic, contact us at rsCoronavirusEmploymentTeam@ReedSmith.com.
A copy of the full California Executive Order can be found here, and the L.A. Order can be found here. The California Executive Order directs owners, managers, or operators of facilities to consult the Los Angeles County Department of Public Health website (www.publichealth.lacounty.gov) daily for any modifications or updates of the order.