Bay Area Counties Chart Different Paths Towards COVID-19 Reopening

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Seyfarth Synopsis: After consistently issuing parallel shelter-in-place orders, six Bay Area counties and the City of Berkeley begin to diversify their approaches to easing restrictions and reopening local economies. Businesses preparing to reopen should ensure they are compliant with both California state and local orders.

Five Bay Area Counties Will Now Allow Curbside Retail Operations and Retail Supply Chain Businesses to Operate

On May 18, 2020, the counties of San Francisco, Santa Clara, Alameda, Contra Costa, and Marin, together with the City of Berkeley, announced a joint effort to reopen retail businesses for curbside operations and related retail supply chain businesses. These municipalities issued new shelter-in-place orders this week, allowing these “Additional Businesses” to reopen on or before May 19, 2020. Santa Clara County digressed from the group, announcing that it will allow these businesses to reopen beginning on May 22, 2020. San Mateo County plans to take a different approach.

Curbside Retail and Retail Supply Chain Businesses

The five Bay Area counties and the City of Berkeley imposed largely similar restrictions on the Additional Businesses permitted to reopen. San Francisco’s order, however, establishes more stringent conditions and guidelines than the others. Generally, these Additional Businesses must comply with the following requirements:

Curbside Retail

• Retail stores may open only for curbside pick-up of goods, and no customers may enter the store.
• Retail stores may not move their goods outside for display or sale.
• Retail stores must have direct access to an immediately adjacent sidewalk, street, alley, parking area, or other outdoor area for pick-up (compliant pick-up locations vary slightly by county).
  • San Francisco, Marin, and Santa Clara also expressly prohibit retail stores located in indoor shopping centers from reopening, unless they have direct access to an adjacent sidewalk, street, alley or parking lot. Additionally, San Francisco requires operators of indoor shopping centers to comply with certain conditions before the permitted retail stores can reopen for curbside pick-up.
• Retail stores must ensure customers waiting for pick-up do not block pedestrian access or cause vehicle congestion.
• Any exchange of goods must take place outdoors.
  • San Francisco also permits exchange through a door or open window.
  • Santa Clara further requires customers, to the extent possible, to order and pay for products online or by phone prior to arriving for curbside pick-up.
• Retail stores must limit the number of Personnel in their facilities to ensure six feet of distance is maintained (this is not specifically required by Marin).
  • San Francisco allows no more than 10 Personnel in a given retail facility at any time.
  • Santa Clara allows no more than one Personnel per 300 square feet, unless all Personnel are from the same household or living unit.

Retail Supply Chain

• Retail Supply Chain Businesses (manufacturing, logistics, and warehousing facilities) must limit the number of Personnel in enclosed areas to ensure six feet of distance is maintained.
  • San Francisco and Marin further permit no more than 50 Personnel in the facility at any time.
  • Santa Clara permits no more than one Personnel per 300 square feet.

Any Additional Businesses

• All Additional Businesses must prepare, post, implement, and distribute a Social Distancing Protocol and a written site-specific health safety plan, as required by the respective local orders and the State of California order.
• All Additional Businesses must comply with the Social Distancing Requirements established in the relevant local orders.
• All Additional Businesses must comply with State guidance and any other local directives (e.g., San Francisco’s industry-specific Best Practices for Retail Businesses with Curbside Pickup, Manufacturing, and Warehouses and Logistical Support).

“Personnel” as defined in the orders refers to individuals who provide goods and services associated with retail businesses permitted to reopen. This includes employees, contractors, and subcontractors (such as those who sell goods or perform services on-site, or who deliver goods for the business), independent contractors (such as “gig workers” who perform work via apps or other online interfaces), vendors who are permitted to sell goods on-site, volunteers, and other individuals who regularly provide services on-site at the request of these Additional Businesses.

Additional Activities Allowed to Resume

Alongside the phased reopening of retail stores and supply chain businesses, the five Bay Area counties are beginning to ease restrictions on certain other activities as well. San Francisco now allows outdoor museums, outdoor historical sites, and public gardens to resume operations, subject to certain restrictions. Additionally, in a move geared towards providing new options for religious organizations that have been unable to hold services, and for schools planning graduation ceremonies, Alameda, Contra Costa, and Santa Clara Counties now permit certain vehicle-based gatherings to occur.

San Mateo County Branches Off From the Rest of the Bay Area Counties, Green-Lighting More Businesses to Reopen

Deviating from the reopening plans set forth in the other Bay Area orders, San Mateo revised its shelter-in-place order on May 15 to allow certain services which do not require close customer contact to resume operations beginning May 18, 2020, in addition to curbside retail pick-ups and Retail Supply Chain Businesses.

Curbside Retail and Retail Supply Chain Businesses

For retail establishments and related supply chain businesses, San Mateo set forth limitations and requirements similar to the other Bay Area counties. Notably, however, San Mateo does not require these Additional Businesses to limit the number of Personnel on-site.

Reopening of Services That Do Not Require Close Customer Contact

Another category of businesses now permitted to reopen in San Mateo are services that can be performed while the service provider and customer maintain six feet of distance. Examples of such services include pet grooming, dog walking, and car washes. To resume operations, Personnel performing these services must wear face coverings at all times and must disinfect any surfaces in customers’ homes as well as any of the customers’ belongings the service provider touches before or after the service.

Offices

Under San Mateo’s new order, essential and non-essential businesses may only allow employees who could not perform their job duties from home to return to offices to work. To the extent that the businesses’ operating offices are open, businesses must ensure that there is minimal contact between the people working onsite and members of the public, no indoor person-to-person commercial activity, and must comply with Social Distancing Requirements and face covering requirements.

Outdoor Museums

Similar to San Francisco, San Mateo also allows outdoor museums to open to public provided they can follow additional limitations and conditions.

For more information on best practices for reopening businesses, and to stay up-to-date on both state and local COVID-19 developments, be sure to visit Seyfarth’s COVID-19 resource center, or contact one of our experienced attorneys directly.