By Thomas R. McMorrow, Partner, Government and Regulatory | Steve Coony, Managing Director, Government and Regulatory | Mandana Massoumi, Partner, Employment and Labor | Jonah P. B. Frohlich, Managing Director, Manatt Health | David C. Smith, Partner, Land Use | Esra A. Hudson, Partner, Employment and Labor | Brandon D. Young, Partner, Government and Regulatory | Armand Feliciano, Counsel, Government and Regulatory | Jacob Itzkowitz, Associate, Government and Regulatory | McKay S. Carney, Legislative Advisor, Government and Regulatory
New Order Reinstates Restrictions on Business, Travel and Other Nonessential Activities
On Thursday, December 3, 2020, California Governor Gavin Newsom announced the release of a new regional Stay-at-Home Order in response to increases in rates of new COVID-19 infections, hospitalizations and deaths across the state. Governor Newsom reported during an afternoon press conference that the state is now seeing the highest sustained number of new cases at any time during the pandemic, with over 15,000 new cases reported daily. The Order was published Thursday evening and was issued by Acting State Health Officer Dr. Erica Pan. The Order will be implemented on a five-region basis (Northern California, Bay Area, Greater Sacramento, San Joaquin Valley and Southern California). When a given region falls below 15% of its remaining ICU bed capacity, the Order’s restrictions shall go into effect 24 hours after that assessment. The state’s restrictions will remain in place for at least three weeks and will not be lifted until the California Department of Public Health’s four-week projection of the region’s total available adult ICU bed capacity is greater than or equal to 15%. As with prior statewide orders, counties may have more restrictive local regulations but may not be more permissive than the state. The Order goes into effect on December 5, 2020 at 12:59pm PST (Order, §4).
No region is currently below the 15% threshold, but all except the Bay Area region are projected to hit this mark soon.
However, several counties in the Bay Area announced today that they will begin enforcing these new restrictions as soon as this weekend, regardless of the state trigger. San Francisco, Santa Clara and Contra Costa counties will put the restrictions into effect on Sunday; Alameda on Monday; Marin on Tuesday. The four other counties in the state’s Bay Area region — San Mateo, Sonoma, Napa and Solano counties — are not preemptively putting restrictions in place.
Substantively, the Order reinstates many of the restrictions put in place during the state’s initial Stay-at-Home Order issued on March 19, 2020, and also imposes more specific restrictions on some industries and business sectors.
In regions where the Order is triggered:
- Bars, wineries and personal services (such as hair and nail salons, as well as family entertainment centers and playgrounds) will be forced to close.
- Retail businesses will be limited to 20% indoor capacity, and food and drink service will be prohibited at those businesses.
- Grocery Stores will be limited to 35% capacity, per the December 6 Supplemental Order, and in-person consumption of food or drink is prohibited.
- Restaurants will be closed for all in-person service but may provide delivery and takeout services.
- Hotels in affected areas will be permitted to accept or honor out-of-state reservations only “in support of critical infrastructure services.”
- Public and private gatherings will be prohibited, both indoors and outdoors, except for constitutionally protected religious services and political demonstrations, which shall continue to be permitted outdoors only.
- Outdoor recreational activities will not be specially restricted, but the state will continue to recognize stricter county limits on group sports and other recreational activities.
- K-12 School reopenings are not affected by the Order. Schools that have reopened under the state’s current waiver process may remain open, and schools may continue to move toward reopening pursuant to the existing guidelines in the state’s Blueprint for a Safer Economy.
Some Sectors Can Continue to Operate
The following sectors will be allowed to remain open, subject to appropriate masking and physical distancing, when a remote option is not possible:
- Critical infrastructure
- Schools that are already open for in-person learning
- Nonurgent medical and dental care
- Child care and pre-K
“Critical infrastructure” was defined by early orders and last refined in April by specifying workers who are permitted to leave home for work activities, such as construction projects. The list of Critical Infrastructure and Workers is available here.
Businesses that are permitted to stay open should keep in mind that, in addition to the Order, Cal/OSHA has issued new rules, effective Monday, November 30, that include specific masking and physical distancing requirements in the workplace, as reported by Manatt last week.
Californians in regions subject to the Order will be required to stay at home when not engaged in “essential” activities, which include emergency services, food and agriculture, healthcare, and “critical infrastructure” operations. The Order also restricts all nonessential travel statewide. The Order requires that all activities be conducted observing “infectious disease preventative measures including 100% masking and physical distancing.”
State Enforcement Largely Unchanged
The Governor did not announce new state-level enforcement under the Order, but did acknowledge that the state has been working with the California State Association of Counties to create a process to make CARES Act and other relief funding contingent on enforcement of COVID-19 restrictions, and has used this as leverage to encourage enforcement. State agencies, such as the Department of Alcoholic Beverage Control, are expected to continue their enforcement efforts.
The Order was issued pursuant to several provisions of the Health and Safety Code, as well as “other authority provided for under the Emergency Services Act” and other applicable law. The relevant sections of the Health and Safety Code authorize the California Department of Health Care Services (DHCS) to issue quarantine and isolation orders and take similar actions in response to infectious diseases, and provide local health officers with authority to issue orders and quarantine or isolation requirements. In addition, Health and Safety Code Section 131080 permits DHS to advise and, when necessary, “control and regulate” the actions of local health authorities. It is notable that the Order cites specific statutory authority for issuing public health orders, as some of the prior actions taken by the Newsom Administration have been challenged in court as being ultra vires.
The Order also references two prior Executive Orders issued by Governor Newsom in response to the COVID-19 pandemic: EO N-60-20, the Order issued on May 4, 2020, establishing the Roadmap to Recovery, which preceded the Blueprint for a Safer Economy, and EO N-25-20, which expanded the powers of state agencies to respond to the pandemic.
The Governor’s new Order comes on the heels of several actions taken by the state and individual counties to address the COVID-19 surge. As of this writing, 52 of California’s 58 counties—representing 99% of Californians—were in Purple Tier 1 of the state’s Blueprint, making them subject to the highest level of restrictions, including a new 10 p.m. to 5 a.m. mandatory curfew. In addition, two counties put in place new restrictions as of Monday, November 30: Los Angeles County instituted a new Safer-at-Home Order that significantly reduces nonessential activities and shutters restaurant dining, and Santa Clara County put in place a revised local order that adds significant restrictions on travel and business.