California Governor Gavin Newsom has approved applications from 18 of the state’s 58 counties to “reopen for business” just a week after releasing a new public health order permitting counties to apply to reopen if they “can demonstrate an ability to protect the public and essential workers” to the satisfaction of the Newsom Administration. This variance process is outlined by the California Department of Public Health (CDPH) in guidance issued with the new order. Variance applications from at least five additional counties are reportedly pending, and essentially all of the remaining counties are in talks with the state. Given the quick action on the first 18 applications, the five pending applications are expected to receive similarly swift attention.
On April 14, Governor Newsom announced he would follow a four-stage “Pandemic Roadmap” in making decisions about reopening the state. The Roadmap’s four stages are:
Stage 1: Safety and preparation
Stage 2: Reopening of lower-risk workplaces and other spaces
Stage 3: Reopening of higher-risk workplaces and other spaces
Stage 4: Easing of final restrictions leading to the end of the stay-at-home order
A variance application permits a county to move more quickly through the Stage 2 reopening process if it satisfies two steps outlined in the CDPH guidance:
1. Notify CDPH and engage in consultation regarding the county’s intent to seek a variance.
2. Certify through submission of a written attestation that the county has met the readiness criteria designed to mitigate the spread of COVID-19:
- Epidemiologic stability of COVID-19:
- No more than one COVID-19 case per 10,000 in the past 14 days
- No COVID-19 death in the past 14 days
- Protection of Stage 1 essential workers:
- Draft guidance for employers and essential workers on safety precautions
- Availability of supplies and personal protective equipment (PPE) to protect essential workers
- Testing capacity:
- Minimum daily testing volume of 1.5 per 1,000 residents
- Testing availability for at least 75% of residents
- Containment capacity:
- Sufficient contact tracing (at least 15 staff per 100,000 residents, or one staff member for smaller counties)
- Availability of temporary housing units to shelter at least 15% of county residents experiencing homelessness
- Hospital capacity:
- Capacity to accommodate a minimum surge of 35% due to COVID-19 cases as well as provide usual care for non-COVID-19 patients
- A robust plan to protect the hospital workforce, both clinical and nonclinical, with PPE
- Vulnerable populations:
- Skilled nursing facilities (SNF) must have a greater-than-14-day supply of PPE on hand for staff and an established supply chain process for obtaining more.
- Sectors and timelines:
- County must provide a detailed plan for which sectors and spaces will be opened, in what sequence and on what timeline.
- Triggers for adjusting modifications:
- County must provide a detailed plan for metrics that would trigger either slowing reopening or tightening modifications, including the frequency of measurement and the specific actions triggered by metric changes.
- Details on the county’s plan for moving through Stage 2
As of now, many of the state’s more rural counties have either been approved for a variance or are preparing to request one, while the state’s urban counties seem split on whether to open up or to remain under existing more restrictive local health orders. With each approval, the Newsom Administration is providing guidance that other counties can learn from as they consider whether and how to reopen.
As counties begin to reopen, businesses coming back online will be required to prepare workspace-specific written plans to keep their employees safe. The state’s requirements are:
1. Perform a detailed risk assessment, and implement a site-specific protection plan.
2. Train employees on how to limit the spread of COVID-19, including training employees on how to screen themselves for symptoms and instructing employees to stay home if they do have symptoms.
3. Implement individual control measures and screenings.
4. Implement disinfecting protocols.
5. Implement physical distancing guidelines.
The state has provided industry- and sector-specific guidance for reopening—including checklists—that businesses may find helpful in satisfying the state’s mandates. Of course, the state’s checklists don’t help employers resolve the much more difficult decision of when the risks inherent with reopening are justified by the benefits of being back in business. This is a difficult but resolvable problem. For example, Manatt is helping clients work through the analysis and come to a sound conclusion for them, and we are engaging the state and county officials when necessary to gain support for our clients’ reopening plans. We start from the universally accepted premise that our nation’s tomorrow is dependent on both good health and economic security.
For the latest update on Governor Newsom’s pandemic roadmap and reopening strategy, click here.