In the wake of the outbreak of a novel coronavirus disease (COVID-19), California state and local authorities have been at the forefront of issuing executive orders to institute measures to slow the spread of the virus. Indeed, San Francisco Bay Area counties were among the first in the nation to issue so-called “shelter in place” orders to protect its citizens and prevent the spread of the virus. Many other cities and counties followed suit shortly thereafter. On March 19, 2020, Governor Gavin Newsom issued a statewide stay-at-home Executive Order (Executive Order), noting through an incorporated public health order that “[t]he California Department of Public Health looks to establish consistency across the state in order to ensure that we mitigate the impacts of COVID-19.”1 Several local jurisdictions have since asserted that their local orders are complementary to the statewide order and thus remain in force where their restrictions are more stringent.2 Whether that position is right is open to serious debate. At the same time, state authorities have not yet taken a definitive position on this issue, and clearly possess the authority to make their directives a mere “baseline” that local authorities can exceed.
The Executive Order directed all individuals living in the state of California to stay home or at their place of residence, except as to maintain continuity of operations of 16 federal critical infrastructures and other sectors designated by the State Public Health Officer as critical to protecting the health and well-being of all Californians.3 On March 20, 2020, the State Public Health Officer designated a list of “essential critical infrastructure workers” to help businesses and local governments “protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.”4 The State Public Health Officer updated this guidance on March 22, 2020.5
I. Local Orders
On March 16, 2020, six San Francisco Bay Area counties (Marin, Contra Costa, Alameda, San Jose, Santa Clara and San Francisco) announced nearly identical shelter-in-place orders to go into effect the next day. These orders require that all individuals stay at home except to (1) engage in certain essential activities (e.g., grocery shopping) and (2) work to provide essential business and government services or perform essential public infrastructure construction. In defining “essential business,” these orders list 21 categories of businesses, including grocery stores, restaurants (for delivery and carry-out orders), gas stations, banks, laundromats, and others. Since then, additional cities and counties have issued their own shelter-in-place orders, some of which expanded the definition of “essential” businesses that are permitted to remain open. Others, such as the order from Ventura County, instead listed the types of businesses that must close (such as wineries, movie theaters, and gyms), while also ordering adults 75 years of age or older (or adults 70 years of age or older with a comorbidity) to shelter in place.
II. The Governor’s Order
On March 19, 2020, Governor Newsom issued the Executive Order—a statewide stay-at-home order “to protect the health and well-being of all Californians and to establish consistency across the state in order to slow the spread of COVID-19.”6 The Executive Order instructs “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors” and other sectors designated by the State Public Health Officer as critical to protect the health and well-being of all Californians.7
The Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) outlines the 16 federal critical infrastructure sectors.8 These are sectors “whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.”9 The sectors represent a wide range of industries.
- The Food and Agriculture Sector, for example, includes an estimated 2.1 million farms, 935,000 restaurants, and more than 200,000 registered food manufacturing, processing and storage facilities.10
- The Financial Services Sector includes thousands of depository institutions, providers of investment products, insurance companies, other credit and financing organizations, and the providers of the critical financial utilities and services that support these functions.11
- The Critical Manufacturing Sector includes the manufacturing of primary metals, machinery, electrical equipment, and transportation equipment.12
- While guidance from the Governor purports to require the closure of bars, movie theaters, and convention centers (among others), the Commercial Facilities Sector includes motion picture studios, casinos, amusement parks, conference centers, shopping malls, and other “sites that draw large crowds of people for shopping, business, entertainment, or lodging.”13
- Other notable sectors include the Communications Sector, the Healthcare and Public Health Sector, and the Information Technology Sector.14
On its face, the Executive Order’s use of these sectors to determine what can operate and what must close appears to expand the seemingly tighter restrictions of the local orders. The Executive Order, however, does not purport to exempt all workers in those sectors. Rather, the Executive Order exempts only “individuals . . . needed to maintain continuity of operations of the federal critical infrastructure sectors.”15 Guidance from the relevant state and federal regulators as to which employees are “needed to maintain continuity of operations” is rapidly evolving, but the Executive Order provides more leeway for businesses to consider whether to continue operating than did the previously issued orders.
On March 20, 2020, in accordance with the Executive Order, the State Public Health Officer designated a list of “essential critical infrastructure workers” to help businesses and local governments “protect communities while ensuring continuity of functions critical to public health and safety, as well as economic and national security.”16 The 11 sectors track with the 16 federal critical infrastructure sectors, with slight reorganization. The State Public Health Officer’s designation, for example, combines the Communications Sector and Information Technology Sector into one category.17 For each of the sectors and subsectors, the State Public Health Officer lists roles that would be considered part of the “essential workforce” for the specific sector.18 On March 22, 2020, the State Public Health Officer updated the guidance to include animal control officers and construction material suppliers, among others.19
For example, for the Financial Services Sector, the State Public Health Officer advises that the essential workforce includes “[w]orkers who are needed to process and maintain systems for processing financial transactions and services, . . . [w]orkers who are needed to provide consumer access to banking and lending services, . . . [and] [w]orkers who support financial operations, such as those staffing data and security operations centers.”20
Additionally, unlike many of the local orders (some of which expire as early as April 1, 2020), the Executive Order provides no end date, noting instead that the statewide stay-at-home order shall stay in effect until further notice.
III. Are the City and County Orders Now Irrelevant?
Several cities and counties that issued orders preceding the Executive Order have staked out the position that their orders are “complementary” to the Executive Order.21 For instance, San Francisco has not conceded that its order has now been supplanted by the Executive Order.22 But in a March 21 press conference, Governor Newsom suggested that the Executive Order now controls to the extent that there are conflicts between the local orders and the Executive Order; if there are portions of local orders that are not adequately addressed by the Executive Order, he is open to revising the Executive Order.23 Stated differently, Governor Newsom’s position appears to be that—no matter what the cities and counties have said—the statewide order is just that, and is thus the one to follow.
Tellingly, in an online statement released on Friday, March 20, 2020, state health offices noted that “[t]his is a statewide order. Depending on the conditions in their area, local officials may enforce stricter public health orders. But they may not loosen the state’s order.”24 On Saturday, the statement was changed to the very different: “[t]his is a statewide order.”25 However, the statement did not go so far as to expressly state that the statewide order superseded those of local officials.
If state authorities later take the view that the Executive Order merely established a baseline that local authorities may exceed with more restrictive measures, that view could influence resolution of which order controls. The question could also be overtaken by events if the Governor were to issue a second order directly addressing how his statewide directives interact with local orders.
IV. Enforcement of the Executive Order
As the regulatory landscape is evolving rapidly, it is unclear as of yet how and to what extent the Executive Order will be enforced. The Executive Order itself provides that it “shall be enforceable pursuant to California law, including, but not limited to, Government Code section 8665.”26 Section 8665 provides that “[a]ny person who violates any of the provisions of this chapter or who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine  not to exceed one thousand dollars ($1,000) or by imprisonment  not to exceed six months or by both such fine and imprisonment.”27
Governor Newsom, however, emphasized that “social pressure” would push people to “self-regulate” their behavior and abide by the Executive Order.28 A spokeswoman for the California Highway Patrol also noted that “[t]he [G]overnor is not asking law enforcement to enforce the statewide stay-at-home order.”29 Numerous sheriff’s offices have also stated that their departments did not plan on making arrests to enforce stay-at-home orders.30
For additional guidance as to whether (and to what extent) your California business can and should continue to operate in light of these new orders, please contact any of the California-based lawyers listed below.