Posternak Blankstein & Lund LLP is now Arent Fox. Read the press release

California Quarantine Update: Retail Open for (Curbside) Business

After nearly six weeks of requiring California residents to shelter in place, on April 28, 2020, California Governor Gavin Newsom announced a new four-stage plan for reopening California, however, he did not provide specifics on when each phase would begin.

On May 4, 2020, the Governor issued an Executive Order describing the second and third stages of the plan. Stage 2, which begins on Friday, May 8, allows for pick up at retail establishments, such as bookstores, music stores, toy stores, clothing stores, and sporting goods retailers.

California Governor Newsom’s Four-Stage Plan

The California governor has described the four-stage plan as beginning with the first stage, during which only essential businesses such as grocery stores are open. The second stage, which began on Friday, May 8, 2020, will be separated into “low-risk” and “medium- to high-risk” categories. Businesses that fall into a “low-risk” category include expanded retail (with curbside pickup only) and associated manufacturing and supply chains that support those businesses. Stage 3 will include higher-risk workplaces reopen like movie theaters, gyms, hair salons, nail salons, in-person religious services, and sports without live audiences. The final and fourth stage will see the reopening of concert venues, conventions, sports stadiums, and larger entertainment venues, which could take months to occur.

The Newsom administration is tracking six indicators to determine when to ease restrictions. California’s six indicators for modifying the stay-at-home order are:

  • The ability to monitor and protect our communities through testing, contact tracing, isolating, and supporting those who are positive or exposed;
  • The ability to prevent infection in people who are at risk for more severe COVID-19;
  • The ability of the hospital and health systems to handle surges;
  • The ability to develop therapeutics to meet the demand;
  • The ability for businesses, schools, and child care facilities to support physical distancing; and
  • The ability to determine when to reinstitute certain measures, such as the stay-at-home orders, if necessary.

Although there is not a precise timeline for modifying the stay-at-home order, these six indicators will serve as the framework for making decisions regarding reopening businesses.

States Reopening Retail

The Governor’s decision to reopen some retail follows in the steps of similar orders in other states. For example, since May 4, 2020, in Arizona retail businesses are able to sell goods through delivery service, window service, walk-up service, drive-through service, drive-up service, curbside delivery, or appointment, provided that the business establishes and implements sanitation and physical distancing measures. Comparably, in Iowa retail establishments have been opened only in certain counties and with the requirement that stores limit the number of customers to 50% of the individual stores’ maximum legal occupancy. In Mississippi, strip malls and shopping centers may reopen but are required to follow the safety mandates from the Mississippi State Department of Health including reducing their capacity by 50% and providing hand sanitizer for customers upon entrance.

California’s bookstores, music stores, toy stores, clothing stores, and sporting goods retailers, as well as retail manufacturers supporting those businesses, were allowed to reopen for pickup and resume production on Friday, May 8. Though some individual cities may choose to wait additional time before allowing retail to reopen.

Industry-Specific Guidance

On Thursday, May 7, Governor Newsom released updated guidance in hopes that the economy can reopen safely, as the risk of COVID-19 infection remains. The Governor has repeatedly acknowledged that reducing the risk of infection will require businesses to make radical changes within the workplace and adjust employee practices, while also requiring customers to become educated about this new normal.

Before reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan;
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
  3. Implement individual control measures and screenings;
  4. Implement disinfecting protocols; and 
  5. Implement physical distancing guidelines.

The Governor has also developed individualized guidance for key industries such as agriculture and livestock, auto dealerships, communications infrastructure, and construction. Additional industry-specific guidance can be found here.

When Will Restaurants, Bars, and Hospitality Reopen?

Although the Governor made clear that offices, seated dining at restaurants, and shopping malls will remain closed for now, he did add that some California counties will be allowed to ease their social distancing rules if they demonstrate an ability to implement strong sanitation practices and meet certain requirements for hospital beds, testing capacity, and contact tracing. Additionally, the Governor indicated that Friday’s reopening is only the first part of Stage 2 and there is the potential for the re-opening of restaurants and hospitality more broadly, with modifications in this stage.

California Restaurant Association has proposed reopening recommendations which include requiring temperature checks for restaurant employees, mandatory hand-washing schedules and face coverings for employees who interact with the public, and tables limited to family and household members. Governor Newsom will announce his own guidelines for reopening on Tuesday, May 12, 2020.

As people become more restless, some California counties seem to have ignored the Governor’s plan in favor of their own. For example, Yuba and Sutter counties allowed many businesses to reopen Monday, May 4, 2020. The Governor has stated that counties wishing to move more quickly through Stage 2 may do so only if they can attest that they meet the state’s readiness criteria by creating and submitting a readiness plan which the state will make publicly available. To that end, the Governor signed an Executive Order directing the State Public Health Officer to establish criteria to determine whether and how, in light of local conditions, local health officers may implement public health measures that are less restrictive than the statewide health directives. In turn, the State Public Health Officer issued an Order on May 7, 2020 that local jurisdictions may also implement health measures that are more restrictive than statewide health directives.

Contacts

Continue Reading