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

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).

Question and Anser #25 is particularly instructive:

#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.

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.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Times They Are A-Changin’

Last week was a bit of a whirlwind. Seven Bay Area Counties issued shelter-in-place orders. The Federal government passed two new laws as part of a larger bill providing extensive paid time off for employers with less than 500 employees. Governor Newsom issued Executive Order N-33-20 “ordering all residents are directed to immediately heed the current State public health directives.”

The Statewide stay-at-home order differs in some fairly significant ways from the county shelter-in-place orders. The same basic rule applies:

“Everyone is required to stay home except to get food, care for a relative or friend, get necessary health care, or go to an essential job. If you go out, keep at least 6 feet of distance.”

The list of “essential services” differs from the county orders. The State public health directives indicate the following essential services will remain open, such as:

  • Gas stations 
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out, and delivery restaurants 
  • Banks 
  • Laundromats/laundry services 
  • Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services.

Additionally, companies “needed to maintain continuity of operation of the federal critical infrastructure sectors” are allowed to continue. Friday, March 20, 2020, the list of “Essential Critical Infrastructure Workers” was updated. I suspect this list will change over the coming days and weeks. As of today, the following are just a few of the categories of workers that are covered by my clients. This is not the complete list of workers considered part of the Critical Infrastructure. I put this list together so my clients could go to a single location and identify whether they can allow their workers to come to work.

Healthcare/Public Health Sector

  • Health care providers and caregivers (e.g., physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists).
  • Hospital and laboratory personnel (including accounting, administrative, admitting and discharge, engineering, epidemiological, source plasma and blood donation, food service, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians, respiratory therapists, etc.).
  • Workers in other medical facilities (including Clinics, Community Mental Health, Home Health care, Hospices, Psychiatric, Residential, Rural Health Clinics, and Federally Qualified Health Centers, cannabis retailers).
  • Warehouse operators, and distributors of medical equipment, personal protective equipment (PPE), laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
  • Public health/community health workers,
  • Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services
  • Workers that manage health plans, billing, and health information, who cannot practically work remotely.
  • Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information, who cannot practically work remotely.
  • Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers
  • Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely.
  • Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters.
  • Workers supporting veterinary hospitals and clinics

Emergency Services Sector

  • Workers – including contracted vendors — who maintain digital systems infrastructure supporting law enforcement and emergency service operations.
  • Private security, private fire departments, and private emergency medical services personnel.
  • County workers responding to abuse and neglect of children, elders and dependent adults.

Essential Workforce – Public Works

  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.
  • Support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste.

Food and Agriculture

  • Workers supporting groceries, pharmacies, and other retail that sells food and beverage products, including but not limited to Grocery stores, Corner stores and convenience stores, including liquor stores that sell food, Farmers’ markets, Food banks, Farm and produce stands, Supermarkets, Similar food retail establishments, Big box stores that sell groceries and essentials
  • Restaurant carry-out and quick-serve food operations – including food preparation, carry-out and delivery food employees
  • Food manufacturer employees and their supplier employees—to include those employed in food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging
  • Employees and firms supporting food, feed, and beverage distribution (including curbside distribution and deliveries), including warehouse workers, vendor-managed inventory controllers, blockchain managers, distribution
  • Workers supporting cannabis retail and dietary supplement retail
  • Animal agriculture workers to include those employed in veterinary health;

Energy

  • Workers who maintain, ensure, or restore the generation, transmission, and distribution of electric power, including call centers, utility workers, reliability engineers and fleet maintenance technicians
  • Environmental remediation/monitoring technicians
  • Petroleum product storage, pipeline, marine transport, terminals, rail transport, road transport
  • Petroleum refinery facilities
  • Petroleum security operations center employees and workers who support emergency response services
  • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them.
  • Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
  • Propane gas storage, transmission, and distribution centers

Water and Wastewater

  • Operational staff at water authorities
  • Operational staff at community water systems
  • Operational staff at wastewater treatment facilities
  • Workers repairing water and wastewater conveyances

Transportation and Logistics

  • Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-border travel)
  • Taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies
  • Maritime transportation workers – port workers, mariners, equipment operators
  • Automotive repair and maintenance facilities
  • Postal and shipping workers, to include private companies
  • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers

Communications and Information Technology

  • Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations, Internet Exchange Points, and manufacturers and distributors of communications equipment
  • Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables
  • Installation, maintenance and repair technicians that establish, support or repair service as needed
  • Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, and troubleshooting
  • Dispatchers involved with service repair and restoration
  • Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators
  • Client service centers, field engineers, and other technicians supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, and information technology equipment (to include microelectronics and semiconductors) for critical infrastructure
  • Workers supporting the provision of essential global, national and local infrastructure for computing services (incl. cloud computing services), business infrastructure, web-based services, and critical manufacturing
  • Support required for continuity of services, including janitorial/cleaning personnel

Other Community-Based Government Operations and Essential Functions

  • The Courts, consistent with guidance released by the California Chief Justice
  • Security staff to maintain building access control and physical security measures
  • Weather forecasters
  • Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)
  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects
  • Commercial Retail Stores, that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
  • Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around social distancing
  • Workers critical to operating Rental Car companies that facilitate continuity of operations for essential workforces, and other essential travel
  • Workers that provide or determine eligibility for food, shelter, in-home supportive services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
  • Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services

Financial Services

  • Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities)

Defense Industrial Base

  • Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military. These individuals, include but are not limited to, aerospace; mechanical and software engineers, manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers
  • Personnel working for companies, and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities

Even if you are in one of the designated critical infrastructure workers or provide essential services, employers are encouraged to have employees work from home when possible. When that is not possible, employers and employees should

  • Wash hands with soap and water for at least 20 seconds
  • ·        Cover your cough or sneeze with a tissue
  • ·        Clean and disinfect frequently touched objects and surfaces
  • ·        If soap and water aren’t available, use alcohol-based hand sanitizer
  • Maintain social distance of 6 feet whenever possible

This is a highly stressful time for employees, employers and the community. The landscape changes quickly, and it can be difficult to stay on top of current rules and regulations without becoming overwhelmed. Take a deep breath. Focus on what’s in front of you.

The Nuddleman Law Firm, P.C. is open and helping clients during the shelter-in-place and stay-at-home orders. Our response time might not be as quick due to the volume of questions. I will do my best to send periodic updates and best practices to my clients. If you have questions or concerns, call me. If you get my voicemail, leave a message and I will return to your call as soon as practical.

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

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.