Re-Opening Your Business, Part 2: Navigating Government Orders and Regulatory Guidance

CNN has a helpful collection of information outlining where all 50 states stand on re-opening.  There is not enough space in this blog post to go through that data, especially as each state has a slightly different approach for re-opening.  Regardless of your particular state, though, one of the fundamental components of any re-opening plan for your business is understanding the applicable governmental orders and regulatory guidance.  As I stated in my initial blog post on this topic, re-opening will be a process, and you may well plan to go forward, but have to take steps back, as you move through your path to a new normalcy in your business operations.

California, where I am at, is seeing a rapid shift in governmental orders.  On March 16th, six Bay Area counties (plus the City of Berkeley) issued stay at home orders shuttering all but certain enumerated “essential businesses.”  On March 19th, Governor Gavin Newsom issued a statewide stay-at home order that had the same restriction for the entire state of California.  Other counties in California followed suit, issuing their own orders.  Since then, these numerous orders have been modified several times as developments in the COVID-19 healthcare crisis have emerged at the federal, state and local levels.  On May 8th, Governor Newsom relaxed his order to allow certain sectors of curbside retail to reopen.  In doing so, Governor Newsom announced that counties can apply for variances to allow for faster re-opening processes or they could maintain stricter controls.

The result of these well-intentioned state and local orders, though, has been a confusing patchwork of governmental requirements that have left pundits,  businesses and citizens alike scratching their heads to figure out which orders apply.  This confusion is not likely to fully abate any time soon as health, scientific, political, and economic factors are influencing the orders and policies that are being created.

In addition to these orders, various guidance documents have been issued by the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), the United States Department of Labor, and the White House.

At a high level, the White House’s Guidelines for Opening Up America Again set forth a three-phased approach intended to assist state and local officials to reopen businesses and protect lives.  The White House recommends the development and implementation of appropriate policies in accordance with federal, state and local regulations and guidance regarding:

  • Social distancing and protective equipment
  • Temperature checks
  • Sanitation
  • Use and disinfection of common and high-traffic areas
  • Business travel

Diving deeper, OSHA has issued various guidance documents outlining the measures that businesses must take to protect the workforce, as well as how COVID-19 related complaints will be handled.  Additionally, the CDC recently issued updated guidance for actions that people and communities can take to slow the spread of the virus.   Given the changing understanding of the virus, this guidance has changed over the past several weeks (ex. the CDC now advises that the virus does not spread easily from touching infected surfaces).  So, frequent review of these agencies’ websites is recommended.

These guidance documents are not standards nor regulations; they create no new legal obligations.  However, they do contain recommendations that include descriptions of mandatory safety and health standards (for example:  employers are obligated to provide their workers with personal protective equipment, but the guidance notes that the exact type of PPE to be provided will depend based upon the risk of exposure to be encountered by the worker).

So, what should a prudent business seeking to re-open do?

First, you need to assess which of the various local and state orders apply to your business.  If you operate in one county, this should be relatively straightforward.  If your operations span several counties, you will need to carefully outline the requirements of each of the applicable orders to understand where they are the same and where they differ.  The counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara, for example, issued similarly-worded orders outlining several indicators that are deemed to be critical to deciding when and how to ease shelter-in-place restrictions.  These orders are more restrictive than the most recent order from Governor Newsom.  The Health Officer of Fresno County, by contrast, issued an order allowing businesses to re-open that is predicated on state and CDC guidelines.  Regardless, all re-opening plans are phased approaches that are designed to allow businesses to re-open depending on the level of risk presented by their operations.  There is no one-size fits all approach.

Second, you will need to evaluate applicable regulatory guidance, which may be more detailed in some instances than local or state shelter-in-place orders regarding risk mitigation measures.  For example, the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), requires employers to furnish each worker with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  Accordingly, OSHA recommends a framework called the “hierarchy of controls” to identify and select ways to control workplace hazards, and it has issued detailed guidance explaining how to do so.  With regard to COVID-19, these workplace controls include:

  • Engineering controls (e.g., high-efficiency air filters, increasing facility ventilation rates; physical barriers to separate workstations, etc.);
  • Administrative controls (ex. encouraging sick workers to remain at home, establishing alternating shifts, discontinuing non-essential travel, PPE;
  • Following existing OSHA standards (ex. PPE Standards, 29 CFR 1910 Subpart I);
  • Classifying worker exposure to COVID-19 (e.g., lower risk, medium, high, and very high) and adopting risk mitigation strategies based upon the exposure risk level; and
  • Workforce education and training.

Third, avail yourself of the resources that are out there.  For weeks, governmental officials, regulatory agencies, and the news media have reported the minimum necessary safety controls:  social distancing, frequent handwashing, frequent cleaning, and masks.  Beyond these effective baseline protocols, though, OSHA has various programs and services to help businesses establish a safety and health program.  California has created industry-specific checklists, which can be found at the state’s coronavirus webpage.  Each county and city is also working to respond to COVID-19, most of whom have dedicated webpages with links to useful local information.  While this may seem daunting at first, as you move through each level you will see that the information presented largely coordinates with the level above it (e.g., city, county, state, federal), and you quickly see similar strategies and recommendations for re-opening businesses at all levels of government.

In my next blog post, we will go through a few industry-specific checklists to show the similarities and variances of these orders, guidelines and recommendations to particular businesses.

Re-Opening Your Business is Going to be a Process, Not a Ribbon Cutting

In my very first class in college – a political science lecture – the professor stated, “Where you stand depends on where you sit.” In other words, every position is relative to the circumstances presented. That phrase has stayed with me over the years, especially as my profession is based upon the representation of my clients’ various interests. Everything is relative. That includes your desire to re-open your business and/or your goal to get back to work. Here are some considerations that you should keep in mind, though, as you go through this process.

First, the overarching goal of any re-opening plan should be your workforce’s health and safety. It is not a competing interest; it is the primary interest from which everything else must follow. Obviously, no business is immune to economic realities, but generating revenue is only one element. The potential economic harm that could brought about by not focusing on health and safety could reduce revenue because of increased employee absenteeism due to sickness, curtailed operations if the office must be deep cleaned and/or temporarily closed due to illness, and potential liability from claims (governmental and/or individual) that the business was operated in a grossly negligent or reckless manner.

Second, re-opening your business is going to be a process, not a ribbon cutting. The prudent business will create an operational plan outlining the processes and strategies that will be employed to operate safely. This plan must be set forth in writing, distributed to all employees, and acknowledged in writing by each employee that it will be followed.

In preparing such a plan, you should keep several considerations in mind, which I generally outline below. In subsequent blogs, I will go through the various elements in greater detail.


Governmental Orders_GuidelinesGovernmental Orders/Guidelines

Regardless of where your business is located, there are likely several potentially applicable orders and/or guidelines that have been issued by local, state and federal governmental officials. Some of these orders/guidelines may be expiring, may get extended, or may be more restrictive than other guidelines. Regardless, you must evaluate which ones apply to your business as they do represent current thinking from governmental authorities regarding how business may safely operate.


Regulatory GuidanceRegulatory Guidance

You must stay up to date on guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), the United States Department of Labor, and from state and local authorities. Key guidance documents are found on these agencies’ respective COVID-19 specific web pages.


Current Health of Biz Ops

Current Health of your Business Operations

Not all businesses are the same, so you must honestly assess the operations of your business when deciding how best to operate going forward. Is working remotely working for your company? Then, it should be encouraged. If working remotely is not feasible for all employees, then who needs to come back, and how is that best accomplished (i.e., staggered work shifts, reconfigured office spaces, PPE needs, childcare issues, etc.)?


Health & Safety MeasuresHealth & Safety Measures

You will need to evaluate the health and safety challenges presented by your facilities, employees, and third parties (ex. vendors, customers, deliveries). OSHA, the CDC, and the EEOC have provided various guidance documents for businesses to plan and respond to COVID-19. These documents deal with PPE, social distancing, facility modifications, and employment concerns such as body temperature checks, dealing with illness, and Americans with Disabilities Act compliance in the context of pandemic preparedness. For areas that these guidance documents do not address (ex. the elevator in the lobby of your multi-story office building), you may need to involve a greater group of stakeholders beyond your office (e.g. building management, local health agencies) to develop workable measures.


Phased re-entry milestones

Phased Re-Entry Milestones

Just like many governmental orders and/or guidelines have phases, so too should your business plan for re-opening. You should have a clear understanding for the metrics that will need to be achieved to move from one phase to another. A clear framework for returning to more “normalized” operations will help ease the potential anxiety of employees, customers, and business partners as you go along. Additionally, you need to have a clear understanding of what might require you to phase back to an earlier position of safety, should circumstances change.


Communication strategyCommunication Strategy

What, how, when and where you communicate about your COVID-19 operation strategy cannot be an afterthought. In the short term, this is crisis management. Over the longer term, your communications will be your business voice of reason, projecting a well-earned level of confidence in the “health” of your business operations.


Risk mitigation and managementRisk Mitigation and Management

I previously wrote about the need for liability protection for essential businesses as they operate to provide essential services. However, liability protection will be needed by all businesses as they move to re-open, and waiting for statutory immunity that may never come is not a recommended strategy. In analyzing how you can re-open, you should also consider how things can go wrong. By identifying the risks of your “new normal,” you can work on developing strategies to help avoid and/or handle such risks. As the old saying goes, the best defense is a good offense.

Statutory Liability Protection for Essential Businesses is an Essential Need

Since the inception of the COVID-19 shutdown of the American economy instituted by governmental officials across the United States, food and beverage businesses have been designated as critical infrastructure and essential businesses. Early on, little guidance on how to operate in a pandemic beyond social distancing was provided in conjunction with the hastily prepared governmental orders, leaving many food and beverage businesses to navigate the new operating landscape on their own. As the weeks have worn on, thankfully there have been updates to the initial orders and regulatory guidance that have clarified how to operate.

The most recent guidance update was jointly issued by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) on April 26, 2020. This guidance was issued in response to the outbreak of COVID-19 cases in numerous meat and poultry processing facilities across the country. Recognizing that food processing workers may have a higher risk to potential COVID-19 exposure due to the close proximity in which they work along processing lines and other plant areas, the CDC and OSHA made more definitive recommendations regarding distance between workers, engineering controls (for a quick summary, see graphic below), administrative controls (e.g., social distancing protocols, sick leave policies, handwashing, etc.), the use of personal protective equipment, and employee education about the virus and how to prevent its spread.

"Meat Processing Workstations" provided by the CDC

While such guidance is both necessary and helpful, and with some tailoring can be applied to many essential businesses outside of the meat processing industry, it does not eliminate all risk to the essential workers or to the owners/operators of essential businesses who may be claimed to be liable to those workers should they become ill. Food and beverage businesses, even if they faithfully follow these recommended practices, cannot guarantee that none of their workers will be exposed to or contract COVID-19.

More importantly, governmental leaders view food and beverage businesses to be critical to the protection and maintenance of our food supply.  President Donald Trump just signed an Executive Order to re-open shuttered food processing plants to prevent shortages of pork, chicken and other products. Given the competing demands of meeting our nation’s food supply needs and workplace safety, food and beverage businesses need more protection at this time, and liability protection is a must-have tool while we grapple with this pandemic.

Such liability protection was most notably proposed by Senator Mitch McConnell. Senator McConnell, in response to nervous businesses across the country, indicated his desire to shield companies from liability over pandemic-related lawsuits. As reported by Bloomberg, he publicly worried that asking essential businesses to operate without protection from lawsuits could see those businesses end up in years-long legal claims over their efforts to restart the economy.

Senator McConnell is not alone in sharing this concern. Senate Bill 3007, sponsored by Utah State Senator Kirk Cullimore, was recently passed during a “virtual” special session of the Utah legislature. This bill provides protection from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on a business premises or during an activity managed by the business owner (i.e., claims brought by customers and/or employees).

Proponents of the Utah legislation noted that businesses need assurance that they will not face lawsuits claiming that they exposed employees or customers to COVID-19. This is not an unreasonable fear. Senator Cullimore, who is a practicing attorney, in a subsequent interview regarding the bill noted that he believes that it would be “very difficult to prevail on a negligence claim related to the contracting of COVID-19.” This is likely true given that establishing causation with legal certainty – when, where and how an individual was actually exposed to the virus – would be very difficult, if not impossible. Even so, “as business owners know, whether something may or may not prevail in litigation is not always necessarily the main economic concern,” said Cullimore. “Bringing a claim in and of itself is detrimental to business and an impediment to operating a business.”

Opponents of the Utah legislation openly questioned, however, whether such a measure would be the equivalent of endorsing negligence. It doesn’t have to be. Exceptions to any COVID-19 limitation of liability protections can – and should be – made for gross negligence, fraud or willful misconduct. But deeming certain businesses to be so essential to our communities’ health and safety that they can choose to operate (e.g., food processors, manufacturers, distributors, and retail grocers), and then not shielding them from pandemic-related liability when they do, is a false choice. It is reasonable for a business to argue that it cannot guarantee that a worker will never be exposed to COVID-19. It is also reasonable for a business to dispute that the mere act of working by an employee would establish the requisite causation for any tort claim brought by such employee for being exposed to or contracting COVID-19.

Yet, there must be limitations. Substantial compliance with governmental orders and/or regulatory guidance should be required, of course, and a willful disregard for workplace safety cannot be allowed. If a business is not following recommended governmental and/or regulatory guidance, if it has not made any modifications to its operations to improve worker safety, or if it can be shown that a business willful acted in disregard to applicable law, then the business should not be shielded from potential liability. (In fact, Utah’s law expressly does not preclude liability for willful misconduct or reckless or intentional infliction of harm, nor does it modify workers’ compensation or Utah laws pertaining to workplace safety.)

As statutory liability protections will be heavily negotiated, publicly debated, voted upon, and subject to judicial scrutiny, businesses, employees and customers should be reasonably assured that appropriate liability protections balancing the various concerns will be put into place. But, is it realistic to believe that a federal statute will be quickly put into place, and if so, whether it adequately addresses the concerns of all relevant stakeholders? Senator McConnell has publicly tied such liability protection to any new round of federal stimulus funding, and his Democratic counterparts appear to be resisting this approach for the time being. While it would be preferable for the federal government to establish statutory liability protection regarding COVID-19 exposure claims for essential businesses to prevent a patchwork of state laws of varying levels of protection, essential businesses need protection now. For this reason, I applaud the Utah legislature in passing its liability protection measure, but its broadly worded liability protection language may prove to be too sweeping to serve as a model for legislation covering each state – especially California where it can be argued that we love to do things our own special way.


Supplemental Paid Leave for Illness Related to COVID-19: A New Cost of Business for Large California Food Companies?

On Thursday, April 16, 2020, Governor Gavin Newsom signed Executive Order N-51-20 (the “Executive Order”), effective immediately. The Executive Order requires all food sector businesses that employee 500 or more “food sector workers” – whether in California or nationwide – to provide COVID-19 Supplemental Paid Sick Leave. The businesses subject to the Executive Order’s reach ranges from farm to table. The Executive Orders requires that supplemental paid sick leave be extended to workers at farms, suppliers, manufacturers, warehouses, distributors, fast food restaurants, delivery companies, and grocery stores. This coverage applies to all food sector workers who perform work for the hiring entity, regardless of whether they are deemed employees of that hiring entity. That’s right – this applies to independent contractors. And, it applies to both full and part-time workers.

Who Is Covered?

The Executive Order applies to Food Sector Workers and Hiring Entities.

A “Food Sector Worker” is any person who:

    • works in the canning, freezing and preserving industry;
    • works in the agricultural product processing industry;
    • works in facilities on a farm that prepare products for market;
    • has some other general agricultural occupation;
    • works for a Hiring Entity that operates a food facility as defined in Health and Safety Code Section 113789 (i.e., “an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level”); or
    • delivers food from a food facility for or through a Hiring Entity.

To be covered, the person must also be exempt from Governor Newsom’s March 20th executive order directing all individuals living in the State of California to stay home or at their place of residence, except as to maintain continuity of operations of the federal critical infrastructures (or any other statewide stay-at-home order), and that person must leave his/her home to perform work for or through a Hiring Entity.

A “Hiring Entity” means “any kind of private entity whatsoever” including a delivery or transportation company that has 500 or more employees in the United States.

What Leave Must Be Provided?

There are four categories of coverage provided by the Executive Order.

    • A Food Sector Worker who is employed full time or who worked, or was scheduled to work, at least forty (40) hours in each of the two weeks before the leave date are entitled to receive eighty (80) hours of leave.
    • A Food Sector Worker who does not meet these requirements, but otherwise has a normal weekly schedule, is entitled to leave equaling the total number of hours that he/she is normally scheduled to work over a two week period.
    • If a Food Sector Worker does not have a normal weekly schedule, then he/she is entitled to fourteen times (14x) the average number of hours the Food Sector Worker worked each day for or through the Hiring Entity in the six (6) months preceding the leave date.
    • If the Food Sector Worker has worked for the Hiring Entity less than six months, then he/she is entitled to fourteen times (14x) the average number of hours over the entire period that he/she has worked for the Hiring Entity.

When Can This Leave Be Taken?

A Food Sector Worker who is subject to a Federal, State or local quarantine or isolation order related to COVID-19, who is advised by a healthcare provider to self-quarantine due to COVID-19 related concerns, or who is prohibited from working by his/her Hinging Entity due to health concerns related to potential transmission of COVID-19 may take this supplemental leave.

What Is The Amount Of The Supplemental Paid Sick Leave?

Each hour of COVID-19 Supplemental Paid Sick Leave shall be paid at a rate equal to the highest of:

    • the Food Sector Worker’s regular rate of pay for the last pay period;
    • CA minimum wage; or
    • the applicable local minimum wage.

No Hiring Entity is required to pay more than $511 per day and $5,110 in the applicable two week leave period. However, a Hiring Entity will be exempt from the Executive Order if it pays an amount equal or greater than what is required by the Order.

What Must Hiring Entities Avoid?

A Hiring Entity cannot require a Food Sector Worker to use any other paid or unpaid leave, PTO, or vacation time before he/she uses the COVID-19 Supplemental Paid Sick Leave. A Hiring Entity cannot retaliate against or fire a Food Sector Worker who exercises his/her rights under the Executive Order. A Hiring Entity cannot delay leave when requested by a Food Sector Worker (assuming that he/she satisfies the conditions for such leave).

The California Labor Commissioner is empowered to enforce violations of the Executive Order, and any Food Sector Worker may file a complaint with the Labor Commissioner for alleged violations.

Stay Tuned

The COVID-19 Supplemental Paid Sick Leave requirement remains effective for the duration of any statewide stay-at-home order, and workers who are on leave when such order is rescinded are entitled to take the full amount of leave. How long the statewide stay-at-home order will be in effect is anyone’s guess at this point.

Additionally, on Thursday, April 23, 2020, the Labor Commissioner will publish a model notice of this new supplemental leave requirement. Notice must be conspicuously posted in the workplace, but if a Hiring Entity’s Food Sector Workers do not frequent a workplace (ex. delivery drivers), the Hiring Entity my disseminate the required notice by electronic means (ex. email).

Of particular interest is how this leave is to be paid for. While the Families First Coronavirus Response Act (which applies to food businesses with less than 500 employees) allows for businesses to obtain a tax credit, there is no similar provision in the Executive Order. Perhaps Governor Newsom or the state legislature will address this issue in the near future. Until, then, Hiring Entities should assume that they are footing the bill.

Wash Your Hands – A Worker’s Right

Among all the other rights afforded to Food Sector Workers under the Executive Order, the easiest one to comply with is that such workers must be allowed to wash their hands at least every thirty (30) minutes. Local public health agencies are empowered to enforce this health and safety measure.



CDC Issues Interim Guidance for Essential Businesses to Address Workers with Suspected or Confirmed COVID-19 Exposure

On Wednesday, April 8, 2020, the Centers for Disease Control and Prevention (CDC) published new guidelines explaining how employees of essential businesses (or “critical infrastructure,” depending on which of the various local, state or federal orders/directives apply to your business) can return to work if they have been exposed to individuals with COVID-19 or otherwise suspect such exposure.  Exposure means being in a household or having close contact within six (6) feet of an individual with suspected or confirmed COVID-19.  The timeframe for such exposure extends back to forty-eight (48) hours before that individual became symptomatic.

This does not mean, though, that an employee may return to work if he or she is symptomatic or otherwise ill.  Rather, if the employee is displaying no symptoms, he or she may return to work with certain limitations.  According to the CDC guidance, precautions to be taken include:

  • Pre-Screening: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.  If the employee becomes sick during the day, they must be sent home immediately.  Additionally, information on persons who had contact with the ill employee during the time the employee had symptoms (including 48 hours prior to symptoms appearing) should be compiled by the employer. Others at the facility with close contact of the employee during this time are considered exposed.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

These precautions are guidelines; they are not the only measures that essential businesses should consider.  The CDC also recommends other steps that may be taken such as the pilot testing of face masks, working with facility maintenance staff to increase air exchanges in internal spaces, and staggering breaks to minimize potential congestion in break rooms.

Also, bear in mind that the CDC’s updated guidance does not supplant state or local guidance or orders.  For instance, SF Bay Area counties are recommending the use of face coverings when leaving home for essential travel and when persons are working at essential businesses.  Los Angeles Mayor Eric Garcetti has mandated that workers at essential business must wear masks and/or other appropriate face coverings.  Similarly, San Diego County has ordered all grocery store, pharmacy, drug store, convenience store or gas station employees who may have contact with the public to wear a face covering as described in the applicable California Department of Public Health guidance (which is not mandatory for employers, employees or the public).

If you have questions about how this CDC guidance or other state or local orders may apply to your business, the attorneys at Wendel Rosen LLP can assist you.

Essential Businesses Can Limit Employee Commuting Stress With “Allow To Pass” Letters and Access Cards

In a prior blog post I discussed how food manufacturers can comply with shelter in place orders and still operate. Federal, state and local shelter in place orders have deemed protection of our food supply to be essential as the nation deals with the effects of the COVID-19 pandemic. Clients are reaching out to us asking for suggestions about how they can alleviate the concerns of their employees who must come in to help with food manufacturing, supply or distribution activities during this time.

While we are not currently aware of any incidences where workers have been stopped for a potential violation of a valid shelter in place order, news reports suggest that enforcement of shelter in place orders may become more of a priority as the United States now has the world’s highest number of reported coronavirus cases. In light of this development, one way essential businesses can help limit employee stress during this time is by supplying them with “allow to pass” letters and/or “access cards” that may be presented should the employee be stopped by legal authorities as they conduct travel to and/or from work.

Allow to pass letters can be created internally by staff, of course, but we recommend that you work with legal counsel to review your template form for accuracy and completeness.  Although there is no federal or state guidance regarding the content of any access card/allow to pass letter, we recommend the following minimum content to be presented on company letterhead:

    • Name of Employer
    • Description of business (ex. “food manufacturer”)
    • Representation that the business is both: 1) an “Essential Business” or part of our nation’s “Critical Infrastructure” with citation to applicable order(s)/guidelines regarding the importance of food production and supply, and 2) complying with recommended safety directives for responsible operation
    • Employee Job Title
    • State that the employee, by virtue of his/her position within the company is absolutely necessary to vital role that the business plays regarding food production and/or supply
    • Conclude with a respectful request to allow the employee to travel to and from work without hindrance

Beyond the allow to pass letter, businesses can also supply their employees with “access cards” that they can carry as extra security.  The access card is a shorthand analog to the allow to pass letter, with the express purpose of being carried by the employee as a backup resource – think of it as the employee’s COVID-19 business card.  Accordingly, it should be a much simpler format, such as the following:

I am an employee of <enter text>.

I am working as an employee for a company that is exempt from the shelter-in-place provisions as defined under “essential infrastructure” per this county’s directives. If you have any questions, please call my supervisor, <enter text>, at this phone #<enter contact number>.

This general format can and should be customized to adhere to each business and the appropriate exception designation from the pertinent shelter-in-place directive.  We also recommend that a company logo be placed on the card.  Further, we reiterate that businesses should contact legal counsel to ensure the accuracy of their allow to pass/access cards before they are issued to employees.

Wendel Rosen LLP is actively assisting our clients during this pressing time, drawing upon our full-service capabilities to assist individuals and businesses on all manner of COVID-19 issues.

Bay Area Food Manufacturers Can Comply with the Shelter in Place Order and Operate

The Shelter in Place Order, which was jointly issued by Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo counties and the City of Berkeley, is a very necessary step in addressing the health crisis presented by the COVID-19 Coronavirus pandemic.  While the Order is very detailed, a few food manufacturers have contacted me uncertain as to what the Order means for their operations.  Undeniably, the provision of food is essential, especially since we do not know how long we will be dealing with this challenging pandemic.  However, like anything legal in nature such as the instant Shelter in Place Order, the devil is in the details.  Here’s my take on whether the Order allows food manufacturers to remain in operation at this time:

First, the Order defines “Essential Businesses.”  There are various categories, several of which include those in the general food supply chain.  For instance, businesses that are in “[f]ood cultivation, including farming, livestock, and fishing,” (Order, Sec. 10(f)(iii)); that “provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals,” (Order, Section 10(f)(iv)); “[r]estaurants and other facilities that prepare and serve food, but only for delivery or carry out,” which includes schools (Order, Section 10(f)(xiii); and, “[b]usinesses that ship or deliver groceries, food, goods or services directly to residences,” (Order, Section 10(f)(xvi).

Second, retail food businesses (ex. grocery stores, farmers markets, convenience stores, etc.) are allowed to remain open.  Order, Sec. 10(f)(ii).  Obviously, with limited exceptions (ex. farmers markets) those businesses don’t make the products that they sell, so you need food manufacturers.  Unfortunately the Order does not directly address this part of the food supply chain.  Indirectly, though, it does:  “Businesses that supply other Essential Businesses with the support or supplies necessary to operate,” are allowed to remain open.  Order, Sec. 10(f)(xv).

Third, while food manufacturers may continue to operate, the Order places restrictions on such operations.  “All Essential Businesses are strongly encouraged to remain open. To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements….”  Order, Sec. 3.  Social distancing requirements include:

  • maintaining at least six-foot social distancing from other individuals,
  • washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer,
  • coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and
  • not shaking hands.

Employees at Essential Businesses may leave their home to “perform work providing essential products and services at an Essential Business or to otherwise carry out activities specifically permitted in this Order, including Minimum Basic Operations.”  Order, Sec. 10(a)(iv).  “Minimum Basic Operations” are the “minimum necessary activities” to: (1) maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions, or (2) to facilitate employees of the business being able to continue to work remotely from their residences.

Finally, it is not business as usual.  The Order is to be interpreted with nothing but the public health in mind.  The Order is expressly intended “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the maximum extent possible.”  Order, Sec. 1.  Violations of the Order are classified as misdemeanors punishable by fine, imprisonment, or both. (California Health and Safety Code § 120295, et seq.)

Accordingly, the takeaways from the Order, as I read it, are that food manufacturers may remain open with certain safety mechanisms in place.  To the extent that employees can work from home and perform their functions, they should do so.  To the extent that an employee cannot work from home (ex. a line operator), they can work at the food facility, but only to the extent that they have a six-foot zone of safety around themselves, they practice recommended hygiene protocols, and they do not come into physical contact with their co-workers.  Failure to faithfully comply with the Order will undoubtedly be dealt with severely should the offender’s actions and/or failures to act be discovered.  Discovery can happen by law enforcement and regulators, of course, but the most likely source would be from a business’ own employees.  Everyone is concerned, and if you ask someone to come to work while everyone else is sheltering in place, I would expect that those employees will be threatened and alarmed by any conduct that they perceive as unsafe.  Now is certainly not the time to put profit over people.