Bay Area Counties Double Down on Shelter-in-Place Orders

This Article was updated on 4/7/2020 to include correcting and clarifying information from the Temporary Regulations on the FFCRA.

This is no April Fool’s joke. The same day the new Federal Families First Coronavirus Response Act goes into effect, 8 Bay Area jurisdictions extend the current Shelter-in-Place orders and further limit the list of “essential businesses.

Aside from extending the Shelter-in-Place order to May 3rd, the new orders also:

  • Limit activities at parks and other outdoor activities
  • Close playgrounds and shared facilities for recreational facilities
  • Close dog parks
  • Require essential businesses to prepare, post, and implement a Social Distancing Protocol
  • Limit the number of people allowed in a store at one time and providing guidance on how to control shopping lines
  • Require companies remaining open to provide hand sanitizer
  • Further limit allowable construction activities
  • Eliminate the exemption for businesses that sell products that allow people to work from home
  • Allow delivery of goods but not services to residences and businesses.

Fewer Essential Businesses Under New Stay at Home Orders

Even if you were an essential business under the prior order, or are an exempt business under California’s Stay-at-Home order, review your county’s Shelter-in-Place order to ensure you are still exempt from the order:

Remember, the counties and cities can create stricter restrictions than the state. Businesses exempt under the state order may not be exempt under the applicable county order.

Also, if you are an exempt business and you intend to remain open, you must adopt a conforming Social Distancing Protocol. The Alameda County Revised Order has a sample Social Distancing Protocol businesses and complete and post.

New Emergency Paid Sick Leave Answers

In other news, the Secretary of Labor’s FAQ’s regarding the FFCRA seem to confirm that the Emergency Sick Leave does not apply to business closures resulting from the shelter in place orders. Questions & Answers Numbers 23-25, and 27 indicate that emergency paid sick leave does not apply to worksite closures “pursuant to a Federal, State or local directive.”  As a result, the intended federal safety net for employees unable to work due to such local directives appears to be unemployment compensation (and not federal Emergency Paid Sick Leave).  By contrast, employees may be entitled to use state/local mandated paid sick leave for inability to work due to a shelter order (depending on the specific terms of the state or local paid sick leave law).

UPDATE 4/2/2020: After issuing the Q&A, the DOL issued Temporary Regulations indicating the above interpretation of the Q&A is incorrect.

§ 826.10 General of the regulations state:

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.

The regulations and Q&A still indicate if an employee is unable to work because the workplace has closed or has no work for the employee–even if the lack of work is related to COVID-19 or a shelter-in-place order–then the employee is not eligible for EPSL or EFMLA.

#25 If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

See Introduction to Regulations, page 14:

An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment

See, also, § 826.20(a)(2) Paid Leave Entitlements:

An Employee Subject to a Quarantine or Isolation Order may not take Paid Sick Leave where the Employer does not have work for the Employee as a result of the order or other circumstances.

We are open and assisting clients throughout this process. Due to the volume of calls and emails, I may be a bit slower than normal, but please feel free to reach out if you have employment-related questions.

Information provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

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