Bay Area Tightens Requirements for Essential Businesses, Including Construction

Two weeks after leading California and the country with the first shelter-in-place orders in response to the coronavirus, the San Francisco Bay Area once again stepped forward to help manage the course of the COVID-19 pandemic.

On March 31, 2020, six counties – Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara – and the City of Berkeley issued new Public Health Orders that limit the activities categorized as Essential Business and also impose work practice and notification requirements on Essential Businesses.

Each order acknowledges that the local jurisdiction is imposing "more stringent restrictions ... and additional restrictions ... not covered by the State Shelter Order." Each order also puts the public, businesses and the state on notice that 1) "the most restrictive provision controls" where a conflict exists between the local order and the state order, and 2) the more restrictive local provision applies until and unless the State Public Health Officer expressly finds that a local provision "constitutes a menace to public health" in accordance with California Health and Safety Code Section 131080. Under Section 131080, the State Public Health Officer "shall control and regulate" the activities of local health authorities "when in its judgment the public health is menaced."

A couple of key provisions that distinguish the March 31, 2020, Bay Area Orders from the State Order include further restrictions in the Construction category for Essential Business and the requirement that Essential Businesses to have prepared and posted a "Social Distancing Protocol" in accordance with the Order by April 3, 2020, as well as provided a copy to each employee working at the facility.

Essential Construction Projects

Only the following types of construction are now considered essential under the new Bay Area Orders:

• projects immediately necessary to the maintenance, operation or repair of Essential Infrastructure
• projects associated with healthcare operations, provided that such construction is directly related to the COVID-19 response
• affordable housing, including multi-unit or mixed-use developments containing at least 10 percent income-restricted units
• public works projects if specifically designated as an Essential Governmental Function
• shelters and temporary housing, not including hotels or motels
• projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged or persons with special needs
• construction necessary to ensure that existing construction sites that must be shut down under the Bay Area Orders are left in a safe and secure manner
• construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary or habitable

Information for coronavirus response and related shelter orders from individual California counties are available on the California COVID-19 Response website. The March 31, 2020, Bay Area Orders can be found below:

• Alameda County
• Contra Costa County
• Marin County
• City and County of San Francisco
• San Mateo County
• Santa Clara County
• City of Berkeley

We Can Help

If you have specific questions about how the California Executive Order affects your construction company or another type of business, please contact our California COVID-19 Team – which includes Holland & Knight attorneys Jennifer Hernandez, Letitia Moore, Bradley Brownlow, Nicholas Targ, Andrew Starrels, Ryan Leaderman, Karl Lott and Stacie Goeddel for legal assistance on this or other COVID-19 topics.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.