April 1, 2020
Yesterday, March 31, six Bay Area counties (Alameda, Contra Costa, Marin, Santa Clara, San Francisco [County/City], and San Mateo) and one city (Berkeley) issued an updated shelter-in-place order. THE ORDER IS IDENTICAL FOR EACH COUNTY/CITY (the orders are linked below and collectively referenced here as the “March 31 Bay Area Order”). As we outlined in our prior releases concerning Governor Newsom’s March 19 statewide Executive Order N-33-20, the statewide order generally identifies construction and construction materials providers as “essential businesses” that may continue to operate. The March 31 Bay Area Order “adopts in certain respects more stringent restrictions” than the statewide order, as discussed below.
1. Does the March 31 Bay Area Order prohibit construction? The March 31 Bay Area Order prohibits construction generally, unless the construction falls within one of the following eight categories:
|1. Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure, including airports, utilities, oil refining, roads and highways, public transportation, solid waste, cemeteries, and telecommunications systems;|
|2. Projects associated with Healthcare Operations, such as hospital clinics, COVID-19 testing facilities, pharmacies, and biotechnology companies, provided that such construction is directly related to the COVID-19 response;|
|3. Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units (note that the prior Bay Area orders were understood to permit the construction of all housing, irrespective of whether it was affordable or not);|
|4. Essential public works projects if specifically designated by the City [or County] Administrator in consultation with the Health Officer as an Essential Governmental Function that is needed to ensure the continuing operation of government agencies and to provide for the health, safety and welfare of the public;|
|5. Shelters and temporary housing, but not including hotels or motels;|
|6. Projects immediately necessary to provide critical noncommercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;|
|7. Construction necessary to ensure that existing construction sites that must be shut down are left in a safe and secure manner, but only to the extent necessary to do so; and|
|8. Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed.|
2. Does the March 31 Bay Area Order prohibit construction materials producers from continuing to operate? Unlike the statewide order and statewide “essential business” guidance, the March 31 Bay Area Order does not expressly identify construction materials producers as an exempt “Essential Business”. However, the Order exempts “Businesses that supply other Essential Businesses with the support or supplies necessary to operate, but only to the extent that they support supply these Essential Businesses. This exemption shall not be used as a basis for engaging in sales to the general public from retail storefronts.” (See Order ¶ (13)(f)(xix).) Construction materials producers may therefore continue to operate to “supply other Essential Businesses with the support or supplies necessary to operate”. We interpret the March 31 Bay Area Order as prohibiting construction materials producers from otherwise supplying materials to the general public during the time the Order is in effect.
3. Does the Executive Order apply to suppliers and downstream contractors? Suppliers and downstream contractors may continue to operate as necessary to “supply other Essential Businesses with the support or supplies necessary to operate”.
4. Does the March 31 Bay Area Order impose any special rules or requirements that construction materials producers and contractors must follow while continuing to operate? Businesses that continue to operate must comply with the following requirements:
|1. All Essential Businesses must prepare and post by no later than 11:59 p.m. on April 2, 2020 a “Social Distancing Protocol” for each of their facilities in the County frequented by the public or employees. The Social Distancing Protocol must be substantially in the form attached to this Order as Appendix A. The Social Distancing Protocol must be posted at or near the entrance of the relevant facility, and shall be easily viewable by the public and employees. A copy of the Social Distancing Protocol must also be provided to each employee performing work at the facility. All Essential Businesses shall implement the Social Distancing Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand.|
|2. Businesses that include an Essential Business component at their facilities alongside non-essential components must, to the extent feasible, scale down their operations to the Essential Business component only.|
The individual Bay Area Orders may be accessed here:
The above guidance represents our current understanding of the March 31 Bay Area Order. We will update this guidance as appropriate.
A pdf copy of this article may be downloaded here.
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Brad Johnson is a Partner at
Harrison, Temblador, Hungerford & Johnson LLP in Sacramento, California.
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