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 their own Health and Safety Order applicable to residents and businesses that operate within their jurisdiction. Businesses are urged to consult the health and safety order issued by their city or county for guidance as whether they are “essential businesses”.

Businesses that supply essential businesses are considered “essential” but only to the extent they support “essential businesses” and therefore may only be essential as to a single product line or a single process or manufacturing unit, or a single service. This means they can only stay open as necessary to supply and support “essential businesses”. If a business can remain partially open it must furlough or lay off those workers that are not deemed “essential” while maintaining the employment of those workers who are considered “essential”.

Practice Tip: If your business is being asked to remain open so that it can supply an “essential business” and you are concerned you may not meet the definition ask the essential business to provide a letter stating they are an essential business and consider your business an essential supplier to them.

Practice Tip: Provide commuting employees with a letter confirming the business is essential and the employee is commuting to or from work so if they are stopped or questioned they can provide proof they are working for an essential business.

These orders are changing as the pandemic worsens or improves so check back regularly to ensure you are following your county’s most recent order. A link to each city or county Orders and Amended Orders is available at Appendix A.

AMENDED CITY AND COUNTY HEALTH AND SAFETY ORDERS

Many city and counties have issued amended health and safety orders that extend the order, require residents and employers adhere to stricter requirements including more rigid social distancing rules, and implementing more stringent policies and protocols like the use of face masks in the workplace.

For example, the counties in the Bay Area have ordered all essential businesses to prepare and post a “social distancing protocol” for each of their facilities in the respective counties. Not only must the social distancing protocol be posted in each facility, the employer must provide a copy of the social distancing protocol to each employee performing work at the facility. Moreover, the employer must provide evidence that it has implemented a social distancing protocol if asked by any authority enforcing the health and safety order. The social distancing protocol must explain how the business is achieving the following:

• Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete the essential business activity.
• Lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing.
• Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for use by public and employees, and in locations where there is high frequency employee interactions with members of the public (for example cashiers).
• Providing for contactless payment systems, if not feasible to do so, providing for disinfecting all payment portals, pens and styluses after each use.
• Regularly disinfecting other high-tech surfaces.
• Posting a sign at the entrance of the facility informing all employees and customers that they should: Avoid entering the facility if they have a cough or fever; maintain a minimum six-point distance from one another; sneeze and cough into one’s elbow; not shake hands or engage in any unnecessary physical contact.
• Any additional social distancing measures being implemented (see the Centers for Disease Control and Prevention Guidelines) at: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

In another example, on April 7, 2020 the City of Los Angeles issued a Worker Protection Order. The order requires all workers at essential businesses permit that employees to wash their hands at least every 30 minutes. In addition, employers must provide, at their own expense, non-medical grade face coverings for their employees. Employers must ensure their employees have access to clean, sanitary restrooms, stocked with necessary cleansing products; or sanitizing agents required to observe hand sanitation protocols recommended by the Los Angeles County Department of Public Health. In a first-of-its-kind requirement, the City of Los Angeles requires all customers and visitors of businesses and organizations deemed essential, they must wear face coverings over their noses and mouths to provide additional protection for employees and customers. The order additionally allows a business owner to refuse entrance to any individual who fails to wear face coverings as required by the order.

An extensive look at the city and county health and safety order is beyond the scope of this guide; however, businesses are encouraged to check their local health and safety orders to ensure 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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