California Governor First to Implement Mandatory Stay at Home: What This Decision Could Mean For Other States

Governor Newsom’s Order effectively requires Californians to stay home, except for “essential needs,” which has been defined generally to include purchasing food and medications, caring for a relative or friend, obtaining necessary health care or performing a job that is part of federal critical infrastructure sectors, as further defined in the State Public Health Officer’s March 22, 2020 release. The list contains the following essential critical infrastructure workers, which are broken down more specifically in the release:

• Healthcare/public health: including but not limited to health care providers and caregivers (e.g. physicians, dentists, psychologists, mid-level practitioners, nurses and assistants).
• Emergency services: such as police and fire departments, and animal control officers.
• Food and agriculture: examples include workers supporting groceries, pharmacies, and other retail that sells food and beverage products, and restaurants providing take-out and delivery.
• Energy, water, and wastewater: examples include utility workers, cybersecurity engineers, and operational staff at water authorities.
• Transportation and logistics: including but not limited to aircraft, air traffic control systems, airports, and public transit systems.  
• Communications and information technology: examples include news reporters, IT managers, software and hardware engineers, and database administrators.
• Other community-based government operations and essential functions: such as the courts (with the guidance of the California Chief Justice) and elections personnel.
• Critical manufacturing: including workers necessary for the manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, chemical manufacturing.
• Hazardous materials: examples include workers at nuclear facilities and those who support hazardous materials response and cleanup.
• Financial services: examples include employees at include banks insurance companies and credit unions.
• Chemical and defense industrial base: examples include workers supporting the chemical and industrial gas supply chains and those who support the essential services required to meet national security commitments to the federal government and U.S. Military.

Yet even businesses fitting within this critical infrastructure may not be certain they fit into one of these categories. Even if they do, continuing operations must also be in accordance with city and local orders. The Governor's Order came on the heels of a similar order issued by the City of San Francisco, or March 16, 2020, and order issued by the City of Los Angeles, on March 19, 2020, which, for example, only allow restaurants to provide pick-up or delivery options — something many restaurants were not equipped for before the orders.

While many business owners seem eager to keep their business open and operating if they can validly argue they are part of critical infrastructure, owners are also likely taking precautions to avoid violating the orders as the California Order, San Francisco Order and Los Angeles Order are all punishable as misdemeanors. Ultimately, it is still unclear how or if these Orders will be enforced. (See our list of all State and municipality stay at home orders.)
 
In recent days, other states and cities have quickly followed California’s lead with varying degrees of restrictions. Interestingly, while some states, cities, and municipalities have set end dates for the restrictions, Governor Newsom’s order is in place until further notice, indicating that if the trend of following California’s footsteps continues other restrictions may be extended. For comparison, the San Francisco order is set to end April 7, 2020, or until rescinded, extended, superseded or amended. It seems possible that if California continues its restrictions other states and municipalities may follow suit, which could mean additional weeks, if not months, of restrictions if the Governor's theory holds true.