State and Local Workplace Safety Orders

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On March 12, 2020, the World Health Organization (WHO) declared COVID-19 a global pandemic. Shortly after, all 58 counties in California issued public health orders applicable to residents and businesses.

The message from the federal, state and municipal governments was for everyone to STAY HOME, except for people who work for businesses deemed to “essential." Nonessential businesses may remain operational as long as their employees can telework.

CALIFORNIA EXECUTIVE ORDER N-33-20

On March 19, 2020, Gov. Gavin Newsom issued Executive Order N-33-20 (PDF) directing all California residents to stay home unless they are required to maintain the continuity of operations of critical infrastructure and other sectors as the state public health officer may designate as critical to protect the health and well-being of all Californians. The order identified 16 critical infrastructure sectors whose operations the state declared to be essential for the security, public health or safety or economic security of California. Essential workers –– those permitted to work on-site –– include:

• health-care providers, hospital personnel and workers in medical facilities and supporting businesses, including workers at senior living establishments
• law enforcement and first responders, including paramedics and EMTs
• workers supporting groceries and pharmacies, including farm workers and other suppliers and restaurant workers (takeout and delivery only)
• food manufacturingr employees and their supplier employees
• workers supporting all public works, including construction projects
• workers supporting electricity, oil and natural gas delivery and maintenance, including gas station workers
• workers supporting the delivery of drinking water and the maintenance of wastewater systems and facilities
• workers in communications and information technology and their suppliers, including postal workers, shippers and newspaper, television, radio and other media services workers
• workers in the hazardous materials field
• workers in the chemical sector, including chemical manufacturing plant personnel, laboratory and distribution facility workers and others
• workers in financial services, including those providing access to banks and lending services
• workers in the defense industrial base, including those who design, manufacture and maintain military weapons systems
• workers supporting critical manufacturing and suppliers, including metals, machinery, components, electrical equipment, appliance and component transportation manufacturing workers
• workers in transportation and logistics, including mass transit workers, airlines, taxis and truck drivers, and those who support them
• workers who provide goods or services to people working from home and supporting services, including laundromats, dry cleaners and laundry service providers
• workers for community-based government operations and essential functions, including some city and county workers

The list of “critical infrastructure sectors” (that is, essential businesses) is for guidance only –– it's not binding on cities and counties that define “essential businesses” differently. According to the federal government, the critical infrastructure sectors are intended “to clarify the potential scope of critical infrastructure to help inform decisions by state and local jurisdictions, but does not compel any prescriptive action. Ultimately, those jurisdictions will need to issue guidance that balances the importance of public health concerns with infrastructure resilience imperatives.” So different jurisdictions might reach different conclusions about where essential worker accommodation is warranted.

The executive order stands until further notice.

CITY AND COUNTY HEALTH AND SAFETY ORDERS

Many California cities and counties have issued health and safety orders for residents and businesses operating within their jurisdiction. Businesses are urged to consult such orders to determine if they qualify as "essential."

Suppliers of essential businesses also are considered “essential,” but only if they support essential businesses. So they might be essential only for a single product line, single process or manufacturing unit or a single service. That means that they may remain open only as necessary to supply and support that essential operation. If a business may remain open partially, it must furlough or lay off workers not deemed essential, and maintain employment for workers who are.

Practice Tip: If your business is asked to remain open so that it can supply an essential business, and you are concerned that you might not meet the definition, ask the essential business for a letter stating that it qualifies, and considers your business to be its essential supplier.

Practice Tip: To enable your commuting employees to prove their essential status if questioned, provide them with a letter confirming that your business is essential, and that employees commute to or from work.

The health and safety orders change as the pandemic worsens or improves, so check regularly to ensure that you're following your county’s most recent order. Links to city and county orders and amended orders are found in Appendix A.

AMENDED CITY AND COUNTY HEALTH AND SAFETY ORDERS

Many city and counties have issued amended health and safety orders to extend or impose stricter requirements, including more rigid social distancing rules and more stringent policies and protocols such as the use of face masks in the workplace.

For example, counties in the San Francisco Bay Area have ordered all essential businesses to prepare and post a “social distancing protocol” in each of their facilities. The employer must provide a copy of the protocol to each employee working in the facility. The employer also must provide evidence that it has implemented a social distancing protocol if asked by any authority enforcing the health and safety order. The protocol must explain how the business:

• limits the number of people who may enter the facility at any one time to ensure that the minimum 6-foot social distance is maintained, except as required to complete the essential business activity;
• marks the 6-foot distance to establish and maintain adequate social distancing among individuals forming lines;
• provides hand sanitizer, soap and water or disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and employees, and where employees interact with the public (for example, cashier stations);
• provides for contact-free payment systems if feasible, and if not, disinfects all payment portals, pens and styluses after each use;
• regularly disinfects other high-tech surfaces;
• informs employees and customers with a sign posted at the entrance of the facility that they should avoid entering if they have a cough or fever, maintain at least 6 feet of distance from one another, sneeze and cough into their elbows and not shake hands or engage in unnecessary physical contact;

To see if additional social distancing measures have been implemented by the Centers for Disease Control and Prevention, link here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.

Another example of revised orders occurred on April 7, 2020, when the city of Los Angeles issued a worker protection order. It requires all businesses with essential workers to permit them to wash their hands at least every 30 minutes. The employers must provide, at their expense, nonmedical-grade face coverings for their employees, and must ensure that employees have access to clean, sanitary restrooms stocked with cleansing products or sanitizing agents compliant with hand sanitation protocols recommended by the Los Angeles County Department of Public Health. In addition, Los Angeles requires all customers of and visitors to essential businesses and organizations to wear face coverings over their noses and mouths. The order permits a business owner to refuse entrance to anyone whose face is not covered per the order.

Businesses are encouraged to check their local health and safety orders regularly to ensure that they are complying with all applicable orders. See Appendix A for links to California’s city and county health and safety orders.

SEE ALSO

• Employment and Labor Introduction
• Appendix: Web Links For Local Safety Orders
• Federal Health and Safety Orders: Centers for Disease Control and Prevention Guidance

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