Update: SF Bay Area Issues More Stringent Shelter-In-Place Orders That Pose Significant Limitations on the Construction Industry

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Update: SF Bay Area Issues More Stringent Shelter-In-Place Orders That Pose Significant Limitations on the Construction Industry

As the number of confirmed COVID-19 cases has increased throughout the country and the United States has now surpassed every other nation in terms of the number of confirmed cases, government officials continue to increase efforts to prevent the spread of the virus.

This has led to renewed scrutiny of the construction industry which, subject to certain exceptions, largely had been spared from prior COVID-19 related restrictions. On March 27, Governor Andrew Cuomo of New York announced, among other restrictions, the suspension of all nonessential construction, except for emergencies, and limited construction to certain public works projects, medical facilities, affordable housing and homeless shelters. Similarly, on March 31, the six Bay Area counties that were among the first in the State of California to issue shelter-in-place orders (Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara, along with the City of Berkeley) issued revised orders to clarify, strengthen, and extend certain terms of the prior orders “to increase social distancing and reduce person-to-person contact in order to further slow transmission of Novel Coronavirus Disease 2019” (New Bay Area Orders). The new orders replace and supersede the prior orders.  Despite the broad inclusion of all construction workers who support construction sites and construction projects in the designated list of “Essential Critical Infrastructure Workers” issued by the California State Public Health Officer in accordance with the State Executive Order, the New Bay Area Orders prohibit all residential and commercial construction except:

  1. Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure, including airports, utilities, oil refining, roads and highways, public transportation, solid waste, cemeteries, and telecommunications systems;
  2. Projects associated with Healthcare Operations, such as hospital clinics, COVID-19 testing facilities, pharmacies, and biotechnology companies, provided that such construction is directly related to the COVID-19 response;
  3. Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units (note that the prior Bay Area orders were understood to permit the construction of all housing, irrespective of whether it was affordable or not);
  4. Essential public works projects if specifically designated by the City Administrator in consultation with the Health Officer as an Essential Governmental Function that is needed to ensure the continuing operation of government agencies and to provide for the health, safety and welfare of the public;
  5. Shelters and temporary housing, but not including hotels or motels;
  6. Projects immediately necessary to provide critical noncommercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;
  7. Construction necessary to ensure that existing construction sites that must be shut down are left in a safe and secure manner, but only to the extent necessary to do so; and
  8. Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed.

The New Bay Area Orders, which are virtually identical to each other, also permit the issuance of guidance requiring construction site specific health and safety plans for those limited construction sites that are permitted to continue to operate.

Besides construction, the most notable other changes in the New Bay Area Orders are the following:

  • Individuals are now required to “strictly comply” with Social Distancing Requirements when interacting with anyone outside their household, whereas under the prior orders individuals were required to “at all times reasonably possible comply” with the Social Distancing Requirements.
  • Outdoor activities that involve shared equipment are prohibited and recreational facilities, such as playgrounds, pools, tennis courts, golf courses and dog parks, have been ordered closed.
  • The definition of “Essential Businesses” has been modified. For example, businesses that supply products for people to work from home are no longer deemed essential. However, “service providers that enable residential transactions” (e.g., notaries, title companies, real estate sales and leasing agents) are deemed essential “provided that appointments and other residential viewings must only occur virtually or, if a virtual viewing is not feasible, by appointment with no more than two visitors at a time residing within the same household or living unit and one individual showing the unit (except that in person visits are not allowed when the occupant is still residing in the residence).” Funeral homes and cemeteries, moving companies, rental car companies and rideshare services that specifically enable essential activities are also now deemed essential.
  • Essential Businesses are required to prepare and post by the entrance of the facility, no later than 11:59 p.m. on April 2, 2020, a “Social Distancing Protocol” (in a form that is in substantial compliance with the Appendix to the New Bay Area Orders) for each of their facilities in the County frequented by the public or employees and to provide a copy to each employee.
  • Essential Businesses must scale down operations that are not essential to maximize the number of employees that work from home and limit operations only to those that are essential.

The New Bay Area Orders further provide that all provisions within them must be interpreted to effectuate the intent of maximizing the number of people who shelter in their places of residences “to slow the spread of COVID-19 and mitigate the impact on delivery of critical healthcare services to those in need.” The New Bay Area Orders have extended the shelter-in-place requirements to May 3, 2020, unless otherwise modified by further order.

In light of these new restrictions, many in the Bay Area are wondering whether they must comply with the stricter requirements of the New Bay Area Orders or whether those orders are preempted by the more lenient State requirements. Likely anticipating this question, each of the New Bay Area Orders expressly provides that “[w]here a conflict exists between this Order and any state public health order related to the COVID-19 pandemic, the most restrictive provision controls.”  If challenged, however, the Bay Area counties (and the City of Berkeley) likely would assert that these orders are consistent with maximizing the protection of the health and safety of California residents and that there is no conflict between state requirements and local orders that impose stricter requirements where the State has not undertaken to occupy the entire field or has not shown the intention that its regulation be exclusive, which these counties would argue the State had not. These counties would also likely point to California Health & Safety Code provisions that not only permit local governments to take measures to preserve and protect the public health, but mandate doing so as may be necessary to prevent the spread of disease. See, e.g., Health & Safety Code § 101025; § 120175. However, whether the New Bay Area Orders or other local orders are challenged as unlawful in light of the State Executive Order remains to be seen.

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