Alerts and Updates

California Issues Restrictive Regional Stay Home Order Tied to Hospital ICU Capacity

December 4, 2020

When the order takes effect depends on whether a region’s ICU availability falls below 15 percent.

Update: As of December 7, 2020, the Regional Stay Home Order has been triggered in the San Joaquin Valley and Southern California regions due to limited ICU availability. Most counties in the Bay Area region have chosen to implement the order, and the Northern California and Greater Sacramento regions are projected to reach levels triggering the order within days.

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As COVID-19 cases escalate dramatically in California, health officials in the state announced a Regional Stay Home Order on December 3, 2020, intended to help flatten the rapidly rising curve and to assist hospitals in managing intensive care unit (ICU) capacity. The order severely restricts business activities, prohibits gatherings and requires masking and physical distancing. It modifies the state’s initial stay-at-home order issued by the governor in March and builds on the state’s Blueprint for a Safer Economy.

A Regional Approach

The order issued by the California Department of Public Health takes a regional approach, dividing the state into five regions:

  1. Northern California: Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama and Trinity counties.
  2. Greater Sacramento: Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo and Yuba counties
  3. San Joaquin Valley: Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare and Tuolumne counties.
  4. Bay Area: Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano and Sonoma counties.
  5. Southern California: Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara and Ventura counties.

When the order takes effect depends on whether a region’s ICU availability falls below 15 percent. Once a region falls below 15 percent availability in their ICUs, the order will take effect within 24 hours. At the time of the announcement, no regions had met the 15 percent threshold, but some were projected to do so within a week.

The order will remain in effect for a minimum of three weeks in any region once it is triggered. Following that initial three-week period, the order will remain in effect until the region’s total available ICU capacity is 15 percent or greater, as determined by the California Department of Public Health’s four-week projections. The department’s ICU capacity projections will be made twice per week approximately unless the department determines conditions merit an alternate projection schedule. Once the order terminates in a region, each county within the region will be assigned a tier based on the state’s Blueprint for a Safer Economy and will be subject to the restrictions of that blueprint appropriate for that tier.

It is possible that regions may be subject to the order a second time if ICU bed capacity again falls below 15 percent.

Mandatory Closures

Within each region subject to the order, all of the following are required to close:

  • Indoor and outdoor playgrounds
  • Indoor recreational facilities
  • Hair salons and barbershops
  • Personal care services
  • Museums, zoos and aquariums
  • Movie theaters
  • Wineries
  • Bars, breweries and distilleries
  • Family entertainment centers
  • Cardrooms and satellite wagering
  • Limited services
  • Live audience sports
  • Amusement parks

New and Tighter Restrictions for Businesses in Sectors Permitted to Continue Operations

Once the order goes into effect in a region, businesses within the following sectors may remain open but will be subject to the following new restrictions:

  • Outdoor recreational facilities: Only outdoor operation is allowed. Food, drink and alcohol sales are prohibited. Overnight stays at campgrounds are not permitted.
  • Retail: Indoor operation is allowed at 20 percent capacity. Entrance metering is required. Eating or drinking in stores is prohibited. Special hours should be instituted for seniors and others with chronic conditions or compromised immune systems. Industry guidance for retailers must be followed.
  • Shopping centers: Indoor operation is allowed at 20 percent capacity. Entrance metering is required. Eating or drinking in stores is prohibited. Special hours should be instituted for seniors and others with chronic conditions or compromised immune systems.
  • Hotels and lodging: May remain open only for critical infrastructure support.
  • Restaurants: May remain open only for takeout, pickup or delivery.
  • Offices: Workers must work remotely with the exception of critical infrastructure sectors where remote working is not possible. 
  • Places of worship and political expression: Only outdoor services are permitted.
  • Entertainment production, including professional sports: Operation is permitted without live audiences. Testing protocol and “bubbles” are highly encouraged.

The following sectors will be allowed to remain open when a remote option is not possible with appropriate infectious disease preventative measures, including 100 percent masking and physical distancing:

  • Critical infrastructure
  • Schools that are already open for in-person learning
  • Nonurgent medical and dental care
  • Child care and pre-K

Industries permitted to operate must continue to follow applicable industry guidance previously issued by the state.

Mandatory Face Masks and Social Distancing

The new Regional Stay Home Order requires 100 percent masking and physical distancing in all businesses operating in any sector.

Staying at Home and Prohibited Gatherings

The order requires individuals living in the region to stay home except as necessary to conduct activities with critical infrastructure as required by law or as otherwise permitted by the order. The order also prohibits gatherings in the region with members of other households except as expressly permitted by the order. It does not prevent persons from the same household from leaving home if they are not gathering with other households. The order also expressly permits worship and political expression as long as those activities are outdoors and consistent with existing guidance for those activities.

Existing Orders and Advisories Remain in Effect

The order, when operative in a region, supersedes any conflicting terms in other Department of Health orders, directives or guidance, including California’s Blueprint for a Safer Economy. Those businesses that do not fall under the Regional Stay Home Order must continue to follow the restrictions under their assigned tier of the blueprint.

Other recent orders and advisories issued by the California Department of Public Health include a Limited Stay at Home Order (prohibiting certain gatherings between 10:00 p.m. and 5:00 a.m., but allowing individuals to go to or from work) and a Travel Advisory (encouraging people to stay at home, avoid nonessential travel and quarantine upon return).

Some counties, such as Los Angeles and Santa Clara, have already issued their own shelter-in-place orders. Alameda, Contra Costa, Marin, Santa Clara, San Francisco and the City of Berkeley (which has its own public health department) announced new local measures will take effect December 7, 2020. In the event of a conflict between state and local orders, the more restrictive typically controls.

Enforcement

Enforcement of the order is left to various state agencies with existing power to issue penalties for violations of the law, including Alcohol and Beverage Control, Cal/OSHA and the Labor Commissioner. Counties are increasingly encouraging reporting of perceived violations and issuing fines for noncompliance, and some are involving law enforcement or issuing cease-and-desist letters to noncomplying businesses.

What This Means for Employers

Many businesses and industries have been permitted to reopen in California at either a reduced capacity or outdoors only. Beginning December 6, 2020, they may have to rapidly close up shop again or move all operations remotely. Employers will need to move quickly in order to comply.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, or any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.