Most Restrictive Limitations on Active Construction Sites to Date—Bay Area
General Overview
As California Governor Gavin Newsom reported preliminary, encouraging signs that his “stay at home” order is slowing the spread of COVID-19, Bay Area leaders acted to further restrict the number and types of employees who can go to work notwithstanding Governor Newsom’s stay-at-home mandate.
Six San Francisco Bay area counties simultaneously issued the most restrictive provisions disallowing work away from home to date. The counties also make clear that they see no ambiguity in whether the Governor’s original release limited local authority: more-restrictive local restrictions control.
As explained in a prior Manatt alert, Governor Newsom issued the nation’s first and most restrictive stay-at-home Executive Order mandate, broadly prohibiting leaving home for purposes of work and for many other activities. The Executive Order was soon paired with a list of “Essential Workers for Critical Infrastructure”. The “Essential Workers” exemptions actually proved quite broad, causing many employers and developers to parse whether their activities, employees and active construction sites qualified as “exempt” from the Executive Order.
In short order, many counties and other local agencies followed the state lead and issued their own stay-at-home mandates with increasingly restrictive exemptions. Some jurisdictions, such as San Diego County and Orange County, deferred to the state. The County and City of Los Angeles both issued specific and more restrictive requirements. And on March 31, six Bay Area counties simultaneously issued the most restrictive provisions to date (Bay-Area-Six). The provisions for the Bay Area orders are summarized below. Many believe counties throughout the state will follow suit shortly. Additionally, advocacy efforts to have more-restrictive local provisions withdrawn in deference to statewide uniformity under the Governor’s mandate appear to be garnering little or no receptivity from Sacramento or elsewhere.
Business Closure and Stay-at-Home Mandate
The quantum shift embodied in Governor Newsom’s Executive Order was a pivot from prohibiting, generally, public gatherings of varying numbers of individuals and groups to an outright mandate that classes of businesses must close to the public and employees and that everyone—everyone—must stay home. From that remarkable baseline of closure and quarantine, the Executive Order provided exemptions for essential functions and classes of essential workers.
The broadest exemption allowing ongoing operations and employee attendance at work is healthcare-related operations and anything having to do with food, groceries and restaurants. These exemptions include nearly all arguably related and support functions.
Departing from economy-sector-specific categorization at the state level, local mandates including the Bay-Area-Six focus instead on “Essential Activities,” “Essential Businesses” and “Minimum Basic Operations.”
Essential Activities
Essential Activities, as defined in the Bay-Area-Six, are the sole reasons for which individuals are permitted to leave their homes. Essential Activities are:
- Performing tasks important to health and safety
- Obtaining necessary services or supplies
- Outdoor activity, but only under proscribed limitations
- Performing work for an Essential Business or Minimum Business Operations as discussed below
- Providing necessary care for a family member or pet
- Attending a funeral (no more than ten individuals present)
- Moving from a residence, but only under specified limitations
The Bay-Area-Six provide further elaboration on what constitute Essential Activities:
- Healthcare Operations under what seems the broadest possible interpretation, including veterinary services though excluding gyms and fitness facilities
- Work for the operation and maintenance of “Essential Infrastructure,” defined to include:
- “[A]irports, utilities (including water, sewer, gas, and electrical), oil refining, roads and highways, public transportation, solid waste facilities (including collection, removal, disposal and processing facilities), cemeteries, mortuaries, crematoriums, and telecommunications systems (including the provision of essential global, national, and local infrastructure for internet, computing services, business infrastructure, communications, and web-based services)”
- All first-responder, emergency, court and law enforcement personnel activity; this also includes performing “Essential Government Functions” as determined by the respective governmental body
Essential Businesses
One Essential Activity under the Bay-Area-Six is to perform work for an Essential Business. Essential Businesses include:
- Healthcare Operations and businesses that operate, maintain or repair Essential Infrastructure (defined above)
- Grocery stores and related businesses
- Food cultivation (including farming, livestock and fishing)
- Provision of food, shelter and social services to disadvantaged individuals
- Construction, but only under the most limited definition to date (see below)
- Journalism-related businesses
- Gas stations and automobile supply and automotive repair shops
- Bicycle repair and supply
- Banks and related financial institutions
- Residential real estate transaction providers and support
- Hardware stores
- Plumbers, electricians, exterminators and related services
- Landscapers and gardeners
- Mailing and shipping
- Education institutions necessary to facilitate distance learning
- Laundromats and dry cleaners
- Restaurants and related facilities for takeout or delivery
- Funeral homes and mortuaries
- Providers of support or supplies to Essential Businesses
- Shipping or delivery of food, groceries or related goods
- Airlines, taxis, rental car companies, ride-sharing services, etc.
- Home-based care for elderly or disadvantaged individuals
- Residential facilities and shelters for seniors, adults and children
- Professional services such as legal, accounting and payroll
- Assistance in seeking employment
- Moving services
- Child care facilities as specified
Essential Businesses—Construction Sites
The Bay-Area-Six has restricted ongoing construction sites far beyond any other enactment to date. Active construction sites are effectively shut down unless qualifying for one of the following very narrow exceptions:
- Maintenance or operation of Essential Infrastructure
- Related to Healthcare Operations
- Multiunit residential or mixed-use residential projects that are at least 10 percent “affordable” based upon income restrictions
- Public works projects considered Essential Government Functions
- Shelters and temporary housing
- Supporting services for homeless, elderly, economically disadvantaged or special needs individuals
- Securing the safety and security of construction sites required to shut down hereunder
- Repair of homes or buildings containing Essential Businesses
Minimum Basic Operations
The Bay-Area-Six were the first orders to recognize what seems like a quite commonsense necessity. Even if their business is not an Essential Activity or Essential Business, owners or proprietors may nonetheless need to leave home to tend to building security, retrieve rental or other payments necessary to meet other obligations, or just meet payroll. Accordingly, the Bay-Area-Six provides:
For the purposes of this Order, “Minimum Basic Operations” means the following activities for businesses, provided that owners, employees, and contractors comply with Social Distancing Requirements as defined . . . to the extent possible, while carrying out such operations:
- The minimum necessary activities to maintain and protect the value of the business’s inventory and facilities; ensure security, safety, and sanitation; process payroll and employee benefits; provide for the delivery of existing inventory directly to residences or businesses; and related functions.
- The minimum necessary activities to facilitate owners, employees, and contractors of the business being able to continue work remotely from their residences, and to ensure that the business can deliver its service remotely.
Manatt has a multidisciplinary team of attorneys and consultants closely monitoring this fluid situation, and we stand ready to assist as you evaluate the implications of this Order and the impacts of compliance. If we can be of any assistance as you navigate these issues, please reach out to David Smith or Tom McMorrow.