Orange is the New Red: Navigating California’s Reopening Restrictions

Last week, San Francisco, Santa Clara and Marin Counties joined several other northern California counties in the less restrictive Orange Tier under California’s Blueprint for a Safer Economy Tier System. Effective March 31, 2021, several other counties, including Alameda, Santa Cruz and the Southern California counties of Los Angeles and Orange, joined them. With this move, some non-essential indoor businesses in these counties, including office-based workspaces, are now permitted to re-open, subject to necessary modifications (and subject to approval by local county public health departments). It has been over one year since offices were forced to close under state and local stay at home orders in these areas, and although much of Southern California remains in the Red Tier, this move is a positive sign that life may soon return to pre-pandemic normal in California. But as businesses get ready to bring employees back to work, there are many considerations (and Orders, Directives, and Guidelines) that should be carefully reviewed when putting reopening plans into place to ensure that when the time comes, employees are being brought back to work safely.

In the Orange Tier, businesses are still subject to face covering and social distancing requirements, and capacity restrictions (typically between 25-50% depending on the nature of the business) under the state’s requirements. Employers should be mindful that the state’s requirement and industry-specific guidance only sets the floor for businesses – and many counties have set additional (and typically more restrictive) requirements that businesses are required to plan for before they re-open. For example, while the state’s industry guidance does not set specific capacity restrictions for office-based workplaces, in San Francisco, offices for non-essential businesses with fewer than 20 personnel must reduce their maximum occupancy to the number of people who can maintain at least six feet of physical distance from each other in the workplace at all times. Non-essential offices with 20 or more personnel must reduce their maximum occupancy to the lesser of: (1) 25% the office facility’s normal maximum occupancy, or (2) the number of people who can maintain at least six feet of physical distance from each other in the office facility at all times. Moreover, regardless of these capacity limitations set by the County, all workers who are able to telecommute must be “strongly encouraged to continue to do so” to the greatest extent feasible. In other words, non-essential office-based businesses must continue to maximize remote work in the Orange Tier and things are not yet “business as usual.”

Some of the most important considerations, however, go beyond capacity restrictions. As more businesses are allowed to re-open and expand their indoor operations, employers should consider taking steps to ensure they are staying on top of current requirements with respect to at least each of the following areas:

Fortunately, the state agencies have taken steps to assist California employers by creating a COVID-19 Employer Portal that generates a customized road map for reopening based on an employer’s answers to various questions about the business type, applicable county of operation, and compliance practices already in place. The portal takes employers through a set of considerations to ensure businesses have the necessary protocols and policies in place prior to reopening, and provides links to applicable state and local resources. Of course, employers are still ultimately responsible for sorting through the applicable guidance and implementing the necessary changes specific to the worksite in order to ensure compliance.

Finally, as we have seen in the past, employers should be mindful that a move to a less restrictive tier does not guarantee that a county may not be suddenly moved back to a more restrictive tier. Businesses should continue to expect the unexpected.

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National Law Review, Volumess XI, Number 91