On June 11, 2021, Governor Newsom issued Executive Order N-08-21 (the “Order”) to roll back certain provisions of the Governor’s COVID-19-related executive orders. As detailed below, the Order will lift many of the executive orders that have affected public agencies during the COVID-19 pandemic.

Executive Order N-25-20 suspended the work hour limitations for retired annuitants who work in CalPERS-covered service during the COVID-19 state of emergency. Under Executive Order N-25-20, any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency will not be counted toward the 960-hour limit for the fiscal year. The 180-day break in service requirement and the 60-day separation in service requirement were also suspended. Executive Order N-25-20 will expire on June 30, 2021.

Executive Order N-28-20 granted local governments full authority to suspend or limit all residential and commercial evictions during the emergency period, where the eviction is either (1) due to non-payment of rent or a foreclosure due to a substantial decrease in household or business income (whether through layoffs, reduced working hours, or a downturn in business), or (2) due to substantial out-of-pocket medical expenses caused by the COVID-19 pandemic or any documented local, state, or federal government response to the pandemic. Executive Order N-28-20 will expire on September 30, 2021.

Executive Order N-29-20 authorized local and state legislative bodies to hold public meetings via teleconferencing and make the public meetings accessible telephonically or otherwise electronically to all members of the public who wish to observe and address the local or state body. Throughout the COVID-19 pandemic, Executive Order N-29-20 has allowed public agencies to hold meetings by teleconference while satisfying all Brown Act requirements as long as public agencies meet the provisions of the Executive Order N-29-20. Executive Order N-29-20 will remain effect until September 30, 2021. After September 30, 2021, public agencies will need to follow all requirements of the open meeting laws found in the Brown Act, including the requirements to have a quorum of the members of the legislative body participate within the boundaries of the public agency, the identification of a teleconference location in the notice and agenda of the meeting, and an opportunity for the public to participate in person at each teleconference location.

Executive Order N-34-20 suspended the timeframes for public hearings required by political subdivisions that are in the process of changing from an at-large method of election to district elections, until social distancing measures are lifted in the jurisdiction.  After that time, those jurisdictions must hold the required hearings in a manner that allows sufficient advance public notice and the opportunity to participate in the postponed hearings. Executive Order N-34-20 will expire on June 30, 2021.

Executive Order N-35-20 allowed all members of a local legislative body or state body to receive updates from federal, state, and local officials, including simultaneous updates, concerning the impact of COVID-19, the government’s response to COVID-19, and other aspects relevant to the declared state of emergency. Executive Order N-35-20 also allowed local body members to ask questions of those officials, to stay apprised of emergency operations and the impact of those operations on their constituents. This provision of Executive N-35-20 will expire on September 30, 2021.

Executive Orders N-35-20 and N-71-20 extended the deadline to file a claim against local governments under the Government Claims Act (Government Code section 911 et seq.) by a total of 120 days, and the time within which the government agency may act upon the claim was also extended by a total of 120 days. Per the Order, any claims accruing before June 30, 2021 will remain subject to the 120-day extension.

Executive Order N-42-20 prohibited water systems in California from discontinuing water service for residential customers and small businesses in a critical infrastructure sector for non-payment of bills. The Order extends the prohibition until September 30, 2021, at which point Executive Order N-42-20 will expire. Public water systems may thereafter discontinue water service for nonpayment of a bill, provided they follow the requirements of their discontinuation of service policies and applicable laws and regulations, including the Water Shutoff Protection Act (SB 998).

For any questions regarding the Order and its implications, please contact Douglas L. White at doug@whitebrennerllp.com, Nubia Goldstein at nubia@whitebrennerllp.com, or the White Brenner LLP office at (916) 468-0950.

As Californians get vaccinated, the California Department of Public Health (CDPH) is preparing to move beyond the Blueprint for a Safer Economy on June 15th. Ahead of the reopening date, the CDPH has released more details regarding restrictions after June 15th. On that date, all industries may return to usual operations, with limited exceptions for Mega Events, as described below. After June 15th, there will be no capacity limitations or physical distancing restrictions. The CDPH will update its Guidance for Face Coverings on June 15th, but masks are expected to only be required on public transportation and in youth, healthcare, and high-risk congregate settings.

Although there will no longer be capacity limits or physical distancing requirements for businesses, employers will continue to be subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards.

Mega Events are defined as events with large crowds greater than 5,000 (for indoor events) and 10,000 (for outdoor events). Indoor Mega Events include events such as conventions, conferences, expos, and sporting events. At Indoor Mega Events, verification of fully vaccinated status or a pre-entry negative COVID-19 test result is required for all attendees. Outdoor Mega Events include events such as music or food festivals, car shows, marathons, parades, sporting events, and concerts. At Outdoor Mega Events, verification of fully vaccinated status or a pre-entry negative COVID-19 is strongly recommended for all attendees. Attendees who do not verify vaccination status should be asked to wear face coverings. Outdoor Mega Events venues are required to make masks available for all attendees.

Pre-entry testing for Mega Events must be conducted within 72 hours prior to the event start time. Both PCR and antigen testing are acceptable. Negative COVID-19 test results can be provided in the form of a printed document from the test provider or laboratory, or an email or text message displayed on a phone from the test provider or laboratory. Vaccination status can be verified by presenting either a vaccination card, a photo of a vaccination card, a photo of the vaccination card stored on a phone or electronic device, or documentation of vaccination from a healthcare provider. Business and venue operators may also utilize self-attestation at the point of registration, during ticket purchase, or on the day of the event prior to entry into the venue. Indoor and Outdoor Mega Event operators must prominently place information on all communications to ensure guests are aware of testing and vaccination requirements. Attendees of both Indoor Mega and Outdoor Mega Events must follow the CDPH Guidance for Face Coverings.

The requirements and recommendations for vaccination verification and negative test results will be in place from June 15, 2021 through October 1, 2021. The CDPH will assess conditions by September 1, 2021 to determine whether updated requirements or recommendations are needed beyond October 1, 2021.

For any questions regarding the CDPH’s reopening details and their implications, please contact Douglas L. White at doug@whitebrennerllp.com, Nubia Goldstein at nubia@whitebrennerllp.com, or the White Brenner LLP office at (916) 468-0950.

The Centers for Disease Control and Prevention (“CDC”) issued new guidance on Thursday, May 13th for fully vaccinated individuals. Under the CDC’s new guidance, people who are fully vaccinated against COVID-19 may resume activities without wearing a mask or physically distancing in most indoor or outdoor settings.

Vaccinated individuals must cover their faces and physically distance when going to doctors, hospitals or long-term facilities such as nursing homes; when traveling by bus, plane, train or other modes of public transportation, or while in transportation hubs such as airports and bus stations; and in congregate settings such as homeless shelters, as well as prisons or jails.

Individuals are considered fully vaccinated two weeks after the one-dose Johnson & Johnson vaccine or the second dose of either the Pfizer-BioNTech or Moderna vaccine series. The CDC guidance indicates that unvaccinated people refers to individuals of all ages, including children.

According to the CDC’s guidance, vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and follow local rules for businesses and workplaces. Earlier this month, the California Department of Public Health updated California’s guidelines for face coverings for some outdoor settings. Currently, fully vaccinated individuals in California are not required to wear face coverings outdoors except when attending crowded outdoor events, such as live performances, parades, fairs, festivals, sports events, or other similar settings.

On Monday, May 17^th, Dr. Mark Ghaly, secretary of California’s Health and Human Services, announced that California will adopt the CDC’s guidance on June 15th. June 15th is the same day Governor Gavin Newsom expects to end most the California’s COVID-19 restrictions if the state’s COVID-19 case numbers continue to improve. Until June 15th, people in California are still required to wear face coverings in indoor settings and outdoor settings where physical distancing is not possible.

Workplaces are not included in the guidance to be adopted on June 15th. Employers must continue to adhere to workplace masking requirements set by California’s Occupational Safety and Health Standards Board. The Board is currently considering removing its masking mandates by August 1st.

For any questions regarding this guidance and its implications, please contact Douglas L. White at doug@whitebrennerllp.com, Nubia Goldstein at nubia@whitebrennerllp.com, or the White Brenner LLP office at (916) 468-0950.

Since the lockdowns from the Covid-19 pandemic began in March of 2020, all indoor and outdoor youth sports were paused to ensure the health and safety of participants. It was not until last month that all outdoor youth sports could continue for counties with new cases at fourteen or fewer per one hundred thousand people. Outdoor sports are allowed to be conducted only with adherence to strict guidelines such as mandatory mask wearing for those not in the game, no sharing equipment, no indoor activities, etc. Individuals over the age of 13 who participate in “close contact” sports, such as football and rugby, are also required to undergo weekly testing.

Indoor youth sports in California have been a higher point of contention between state officials and youth sports organizations. The state’s hesitancy stemmed from increased chance of spread indoors while in close proximity, and rising cases throughout the fall and winter. This prompted two high school students to bring a lawsuit in an attempt to resume youth sports. On March 4, 2021, the students and the State of California reached a settlement that will allow indoor youth sports to continue throughout the state. However, youth sports programs will need to meet a variety of requirements before they can resume.

As with outdoor sports, counties may restart indoor youth sports when Covid-19 cases fall to fourteen or fewer new cases per one hundred thousand people. The settlement also adopts the same testing requirements as many outdoor sports, specifically weekly testing and results within forty-eight hours of competition. Tests will continue to be administered until county Covid-19 cases reach a particular number that varies depending on the sport. For example, testing basketball players will be required until the county reaches less than one new case per one hundred thousand people.

With a steep decline in Covid-19 cases throughout the state, most counties already meet these requirements. However, county health departments may choose to impose stricter standards for the resumption of programs. Updated guidelines on how to conduct indoor youth sports were released by the California Department of Public Health, attached here:

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/outdoor-indoor-recreational-sports.aspx

For any questions regarding the settlement and its implications, please contact Douglas L. White at doug@whitebrennerllp.com, Nubia Goldstein at nubia@whitebrennerllp.com, or the White Brenner LLP office at (916) 468-0950.

On February 5, 2021, the U.S. Supreme Court granted a temporary injunction, effective immediately, preventing the State of California from enforcing the ban on indoor gatherings for religious services during the COVID-19 state of emergency, as set forth in its “Blueprint for a Safer Economy” Tier 1 restrictions (“Order”). The Order leaves in place the 25% capacity limitation and the ban on singing and chanting during indoor services in Counties under Tier 1 restrictions. In light of the Supreme Court’s Order, the State of California has now updated its COVID-19 reopening guidelines. For the latest information on reopening for “places of worship and cultural ceremonies,” and all other industry sectors statewide, check the State of California’s COVID-19 website, available here.

The Supreme Court’s Order, issued in the case South Bay United Pentecostal Church v. Newsom (“South Bay United”), will remain in force until the Court decides whether it will hear the case. If the Court issues an order declining to hear the case, this Order will terminate automatically.  If the Court decides to accept the case, this Order will remain in place until a final decision is handed down. The Order does not provide any indication as to when the Court will issue its decision.

Despite the Supreme Court’s Order, however, the matter remains far from settled. Individual California counties are still imposing their own restrictions, which in some instances are stricter than the state requirements.  Certain counties, such as Santa Clara for example, are doubling down on their own more stringent restrictions and we have yet to see what impact a final Supreme Court ruling will have on those restrictions. Therefore, it is important to check a particular county’s website for the most specific information.  For a list of links to every county’s COVID-19 restrictions, click here.

While the South Bay United Order does not specifically refer to the handling of any fines which may have been assessed related to violations of state or local public health orders, it may be wise to review any pending administrative actions against local entities to ensure that the action is consistent with the limited direction from the Supreme Court.

We will continue to monitor developments in this case and provide further notifications.  For the full text of the Supreme Court’s Order, click here.

For any questions regarding the injunction and its implications, please contact Douglas L. White at doug@whitebrennerllp.com, Nubia I. Goldstein at nubia@whitebrennerllp.com, or the White Brenner LLP office at (916) 468-0950.

On November 19, 2020, the State’s Public Health Officer issued a limited stay at home order (the “Order”). According to the California Department of Public Health (“CDPH”), the Order will help reduce community spread and protect individuals at higher risk of severe illness or death from COVID-19. The Order was issued in response to the unparalleled increase in case rates of about 50 percent in California during the first week in November.

Beginning on November 21, 2020 at 10:00 p.m., all gatherings with members of other households and all activities conducted outside a residence, lodging, or temporary accommodation are prohibited between 10:00 p.m. and 5:00 a.m. Individuals are permitted to leave their residences as long as they do not interact or gather with persons from other households. The Order does not apply to persons experiencing homelessness, activities that are required by law, and activities associated with the operation and maintenance of critical infrastructure. A full list of California’s critical infrastructure is available at https://covid19.ca.gov/essential-workforce/. The Order will  remain in effect until 5:00 a.m. on December 21, 2020 and may be extended or revised as needed.

The Order only applies to counties designated in Tier One (Purple) of California’s Blueprint for a Safer Economy. For counties that move into Tier One (Purple) after November 21, 2020, the Order will go into effect at 10:00 p.m. two days after the county is assigned to Tier One (Purple). The CDPH assigns counties to one of four tiers (“Widespread” – Tier One (Purple), “Substantial” – Tier Two (Red), “Moderate” – Tier Three (Orange), and “Minimal” – Tier Four (Yellow)) based on its test positivity and adjusted case rate. As of November 16, 2020, 41 counties (94.1 percent of the State’s population) are in Tier One (Purple). The status of every county in California can be found at https://covid19.ca.gov/safer-economy/.

Health and Safety Code section 120130 (c) authorizes the CDPH to adopt and enforce regulations requiring strict or modified isolation, or quarantine, for any contagious, infectious, or communicable diseases for the protection of the public health. Though the State has broad authority to issue such directives, and most local jurisdictions have legal authority to enforce them, the Order will undoubtedly pose practical enforcement challenges.

A copy of the Order can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com or Nubia Goldstein at Nubia@whitebrennerllp.com.

On June 18, 2020, in response to spikes in the numbers of confirmed COVID-19 cases and ongoing scientific understanding about transmission, California Governor Gavin Newsom issued an executive order mandating face coverings be worn any time people are outside their home, with some limited exceptions. The executive order updated existing California Department of Public Health guidance for the use of face coverings, which previously only required face coverings in limited circumstances.

The Governor’s order mandates the use of facial coverings sufficient to limit the release of infected droplets of bodily fluids which may come from talking, coughing, or sneezing. The mask requirement is in addition to the previous public health directives related to physical distancing and suggestions about handwashing, meaning that people must engage in all of these protective measures.

Notably in the Governor’s order, facial coverings are required when people are in certain “high-risk situations,” including whenever a person is inside of any public place, and when engaged in work where he or she will be interacting in-person with any member of the public or within a space visited by members of the public, regardless of whether anyone from the public is present at the time. Coverings are also required when one is working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities, and in any room or enclosed area where other people are present and physical distancing cannot be assured. These broad categories encompass almost every workspace in a public agency.

Exemptions from the requirement of facial coverings extend to children aged two and under, those with medical or mental health conditions that prevent wearing a face covering, and in circumstances where wearing a mask would create a risk to the person related to their work, as determined by workplace safety regulators. Those engaged in outdoor work or recreation are not required to wear a facial covering if they can maintain a distance of at least six feet from others. The executive order states that employees with a medical condition that exempts them from the face mask requirements, but who work in a job involving regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it. Persons working from home do not have to abide by the facial covering directive.

The executive order gives guidance on the types of cloth face coverings which are acceptable, which is consistent with previous guidance on the subject. The covering must fully cover the nose and mouth and be secured to the head with ties or straps or simply wrapped around the face in a scarf-like manner. Cotton, silk, or linen are acceptable materials for the coverings, and the item can be factory-made or sewn by hand. Even improvised face coverings, such as scarfs, t-shirts, or towels, can suffice.

If an employee tells you that he or she cannot wear a mask due to a medical condition, while employees continue to have a right to privacy in any disability or medical condition, you may inquire as to whether there is a reasonable accommodation that may be made that affords the protection of a facial covering and addresses the medical condition or disability. The executive order’s “back-up provision” on face shields is just one possible accommodation. Others might include modified fabrics or designs. Keep in mind also that modification to facial coverings and other PPE may be required as a religious accommodation to an employee’s religious garb.

The Governor’s executive order is effective immediately and supersedes previous guidelines and advice promulgated by Cal-OSHA, as well as the orders issued by individual counties or county public health departments.

A link to the Governor’s order can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Debra Hinshaw Vierra at Debra@whitebrennerllp.com or Erin Dervin at Erin@whitebrennerllp.com.

On May 8, 2020, Governor Newsom issued Executive Order N-64-20 (“Executive Order”), making California the first state in the nation to provide every registered voter the opportunity to vote-by-mail for the November 3, 2020 General Election in response to the COVID-19 state of emergency.

Generally, any California registered voter may vote-by-mail, and the impetus is on the voter to request a vote-by-mail form from their elections official. The Executive Order now requires county elections officials to mail all registered voters in their respective jurisdictions a vote-by-mail ballot, even if they have not requested it.

The Executive Order was issued in response to the ongoing COVID-19 emergency and uncertainties about whether—and to what degree—COVID-19 will pose a threat to public health in November. The Executive Order states that counties must act now—to procure supplies, secure polling places, enlist volunteers, and draw up plans to ensure that the election is accessible and safe come November.

What is the last day to register to vote to receive a vote-by-mail ballot?

Generally, the deadline to register to vote in California is 15 days before any election, which for the November 3rd General Election would be October 19, 2020. However, the Executive Order requires counties to mail ballots to all voters, who are registered as of the last day on which vote-by-mail ballots may be transmitted to voters in connection with the General Election, and state law requires counties to mail vote-by-mail ballots between the 29th day and the 7th day before the election. The 29th day before the election is October 5, 2020. Pending any further changes, Californians should register to vote by October 5, 2020 to ensure they are on the rolls to receive a vote-by-mail ballot.

If voters miss the deadline, they can “conditionally” register and vote in person at their county elections office, polling place, or vote center on the same day as the election.

How will in-person voting work?

The Governor’s Office is working with the Secretary of State and the Legislature to determine requirements for in-person voting and details of implementing safety policies for the November elections. Further guidance on the issue, including a possible subsequent Executive Order, is expected.

The Executive Order acknowledges that many Californians may need access to in-person voting, including individuals with disabilities, individuals who speak languages other than English, individuals experiencing homelessness, and others. In a press release, the Governor’s Office stated that, “if by May 30, 2020 counties do not yet have clarity for in-person voting opportunities and other details of the November election, it may be necessary to issue a further executive order addressing these issues.”

Is vote-by-mail a poll tax?

Vote-by-mail in California is not considered a poll tax. Even before the COVID-19 pandemic, any voter could vote by mail in California. In 2017, the Legislature passed Assembly Bill 216, which makes postage on all mail-in ballots in California prepaid, to ensure voters are not disenfranchised for failing to put a stamp on their ballot. In addition, the Executive Order does not prohibit in-person voting for voters who cannot mail in their ballots.

The text of the Executive Order can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

On May 6, 2020, Governor Newsom signed Executive Order N-62-20 (“Executive Order”), which creates a temporary “rebuttable presumption” for COVID-19 related workers’ compensation claims.

What is a rebuttable presumption?

In workers’ compensation law, employees generally have the burden of proof and must support their claim for workers’ compensation with a reasonable factual basis that they contracted the disease at work or how their work put them at a special risk for contracting the disease. A rebuttable presumption shifts the burden of proof from the employee to the employer and requires the employer to prove that the employee did not get injured or ill at work.

Presumptions are nothing new—California law establishes presumptions for a narrow category of workers and specific types of injuries, for example, police officers and firefighters and other public safety officers are entitled to a presumption for certain types of work injuries such as cancer, blood-borne infectious diseases, exposure to biochemical substances, and lower back pain.

Given what we know, and, more importantly what we do not yet know about the transmission of COVID-19, it is difficult for infected employees to prove that their job caused their contraction of COVID-19. According to the Centers for Disease Control and Prevention, COVID-19 spreads easily and sustainably in the community in many geographic areas. All Californians face a shared risk for exposure and testing for the virus and contact-tracing are limited, which makes it difficult to prove that the employee contracted COVID-19 in the workplace—even for employees with an elevated occupational risk of exposure to the disease. While employers have been accepting some COVID-19 claims, many claims have been denied because community spread is a probable source of COVID-19, and many employees are uncertain about how or when they became infected.

The Executive Order shifts the burden of proof onto employers and now, claims can only be denied if the employer can prove that the COVID-19-related illness did not arise out of and in the course of the employment. Given the rate of community transmission, employers should be prepared to see a spike of COVID-19 related workers’ compensation claims.

Who does the Executive Order apply to?

The Executive Order creates a rebuttable presumption of workers’ compensation coverage for workers who: (1) work outside their homes at the direction of their employers, (2) have a positive COVID-19 diagnosis from a licensed physician within 14 days of the date they performed a labor or service at a place of work after the stay at home order was issued, and (3) the diagnosis is confirmed by testing within 30 days of the date of the diagnosis. The rebuttable presumption will not apply to employees who telework, or work from home, and have not been directed to report to the job site.

Is the Executive Order temporary?

The Executive Order is a temporary measure applicable to workers who were directed to work outside the home from March 19, 2020 until 60 days after the issuance of the Executive Order. While the Executive Order is temporary, COVID-19 will have a lasting toll on the workers’ compensation system. We are just beginning to understand the long-term health consequences of COVID-19. Impaired lung function from COVID-19 could negatively affect other organs like the heart, kidneys, and brain, with significant health impacts that may last after recovering from the infection. Employers should be prepared to handle COVID-19 workers’ compensation claims, even when we are no longer combating the pandemic.

What type of workers’ compensation benefits must be provided?

The Executive Order provides that accepted workers’ compensation claims are eligible for statutory benefits, including the cost of hospital, surgical, and medical treatment; temporary disability payments; longer-term permanent disability benefits; and death benefits.

How much will it cost?

Employers may have to foot a hefty bill for COVID-19 workers’ compensation claims. California employers are required to pay for workers’ compensation benefits and are required to maintain workers’ compensation insurance. For many public entities, the cost of workers’ compensation comes directly out of their annual budgets. The Workers’ Compensation Insurance Rating Bureau’s Cost Evaluation of Potential Conclusive COVID19 Presumption in California Workers’ Compensation, estimated a broad cost range for proposals similar to the Executive Order to be somewhere between $2.2 and $33.6 billion per year, with an approximate mid-range cost estimate of $11.2 billion per year—a 61% increase to the annual estimated cost of California’s workers’ compensation system prior to the impact of the pandemic.

A copy of the Governor’s executive order can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Randy Pollack at Randy@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Barbara Brenner at Barbara@whitebrennerllp.com.

Until recently, the Centers for Disease Control and Prevention (“CDC”) advised that only people who are sick or caring for someone who is sick need to wear a face mask. However, new data has shown that using a face mask may help reduce the chance that asymptomatic people spread COVID-19 and could prevent transmission of the virus from symptomatic individuals.

In a departure from its previous advice, the CDC recently published updated guidelines and now recommends the use of face coverings by the general public. Under these guidelines, everyone should wear a cloth face cover when they go out in public.

In addition, last week, a majority of Southern California health officials recommended that the general public should cover their faces to prevent the spread of coronavirus. Public health officials in Los Angeles, San Bernardino, and Orange counties have officially advised residents to use masks to combat asymptomatic spread of the virus. The mayor of Los Angeles has also urged the city’s residents to wear face masks when leaving home.

In some California jurisdictions, face coverings are now required. San Diego County adopted an order making it mandatory for businesses that interact with the public to use cloth face coverings for their employees starting this weekend, including grocery stores, pharmacies, gas stations, and restaurants. Riverside County ordered all residents to cover their faces when leaving home, and the City of Lancaster passed an ordinance requiring face coverings in public during the COVID-19 emergency.

Governor Newsom has stated that face coverings are beneficial, but has not yet taken statewide action on the issue. However, a statewide recommendation or mandate to wear face masks would come as no surprise as counties and cities throughout California begin to instruct their residents to cover their faces.

The new recommendations to wear face coverings bring up the interesting question of what employers must do to keep their employees safe from coronavirus and to reduce its spread. Occupational safety and health laws require employers to provide each employee with a place of employment free from recognized hazards that are causing or are likely to cause death, serious injury, or serious physical harm. Depending on the risk of exposure to coronavirus, employers must be prepared to provide protective face coverings to employees that are required to come into the workplace.

However, that may be hard to do. Medical-grade face masks have flown off the shelves around the United States amid the coronavirus emergency, even when experts advised against wearing them. As state and local governments move toward requiring the use of face masks by the general public, demand for them will continue to accelerate. Further, the United States is facing a shortage of N95 face masks, also known as respirators, which filter at least 95 percent of airborne particles. As COVID-19 cases continue to rise, public health and medical professionals have asked the general public to save N95 masks for the front-line medical community. Given the limited supply chain of masks, employers are advised to take necessary steps to ensure employees have access to face coverings.

Employers should also be mindful about the type of face coverings provided to employees, which will likely vary depending on the job environment and duties. According to the CDC, cloth face coverings should fit snugly but comfortably against the sides of the face, be secured with ties or ear loops, include multiple layers of fabric, allow for breathing without restriction, and be able to be laundered and machine dried without damage or change to shape.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, Nubia Goldstein at Nubia@whitebrennerllp.com, or Barbara Brenner at Barbara@whitebrennerllp.com.

During the statewide COVID-19 emergency, cities, special districts, school districts, and other local public agencies should coordinate their emergency response efforts with two key goals in mind: (1) ensuring that available resources are efficiently utilized and critical emergency-related information is timely disseminated to their constituents, and (2) ensuring recovery of available disaster relief funds from state and federal agencies. Below are some frequently asked questions about California’s emergency response laws and procedures.

What are the laws in California that govern emergency response operations by local governments?

To facilitate the orderly flow of emergency-related information and resources to the public, California has adopted the Standardized Emergency Management System (“SEMS”). Government Code section 8607 requires local governments to follow SEMS procedures. The State of California Emergency Plan, which is prepared and updated by the Governor’s Office of Emergency Services (“Cal OES”) and provides a comprehensive overview of the SEMS procedures, can be found here.

How does SEMS work and what must local governments do to comply?

Generally speaking, the purpose SEMS is to allow for government agencies at all levels statewide to share and distribute information effectively and organize their actions to maximize their emergency response operations. Following SEMS procedures, Cal OES oversees and administers emergency response efforts through five organizational levels: state, regional, operational area, local, and field. Cal OES is most directly involved at the state and regional levels, and the county offices of emergency services oversee resources and information at the operational area level. “Operational areas” under SEMS are the counties and all political subdivisions within them, including cities, special districts, and school districts.

What is an EOC?

Under SEMS procedures, the county operational areas are required to activate and maintain Emergency Operational Centers (“EOCs”), which operate as headquarters to facilitate all emergency response, business continuity, and communications activities in one place. EOCs are activated at three levels based on staffing needs relative to the nature of the emergency. Level Three is a minimum activation used for situations that require only a few people, such as monitoring a general threat that has not yet resulted in an incident. Level One, by contrast, is the highest staffing level and is used for a major event in progress. Finally, Level Two is the intermediate level, where the emergency situation is new or evolving and has not risen to a level demanding Level Three activation. Many operational area EOCs in the state at this time are operating at Level Two, although some counties with larger numbers of COVID-19 cases have activated Level One.

Are local governments required to activate an EOC?

No. EOCs are only required at the county operational area level.

How would activating an EOC benefit local governments?

Although they are not required to do so, cities and special districts could consider activating an EOC at the local level during the COVID-19 state of emergency to better organize their efforts to allocate resources locally and ensure that all residents receive the latest information in real time directly from their local officials first, rather than county or state officials or the media. City Managers and City Administrators can appoint an EOC “commander” who would serve as the point of contact with Cal OES, county operational area EOCs, and law enforcement and public health personnel, and who would oversee the distribution of updated information to the local community.

Also a local EOC could designate a point person or team to oversee efforts to seek disaster relief assistance funds from state and federal agencies. This can be a time-consuming and complicated process. Among other things, cities and special districts must gather and organize the necessary documentation of emergency-related expenses, complete and timely submit the required forms for both Cal OES and the U.S. Federal Emergency Management Agency (“FEMA”), and communicate on a regular basis with the operational area EOCs and regional Cal OES contacts as needed to keep updated on the latest procedures and handle any audit requests.

For a step-by-step guide to registering with FEMA to receive disaster assistance, see our client alert, “Public Agencies May Apply for Public Assistance from FEMA: Eligible Expenses and Procedures,” available at whitebrennerllp.com/covid-info.

How would a city or special district activate an EOC?

There are no strict rules for setting up or staffing an EOC at the local government level – it can be an individual or a team, depending on the needs and available resources of the particular city or special district. However, cities activating their own EOCs are still required to cooperate with the operational area EOCs under SEMS procedures in order to qualify for disaster relief assistance. In other words, SEMS compliance is still required regardless of whether a city chooses to activate its own EOC.

How can a city or special district apply for disaster relief assistance?

Regardless of whether it activates an EOC, any local government may apply directly to FEMA for assistance. Cities and special districts with FEMA accounts that have not yet submitted a Request for Public Assistance (“RPA”) form through FEMA’s online Public Assistance Grant Portal (located here) are urged to do so as soon as possible to begin the public assistance process. Cities and special districts without a FEMA account should email Cal OES at disasterrecovery@caloes.ca.gov and provide the following information in the email: (i) subject; (ii) name of the public agency; (iii) name of contact person; (iv) phone number; and (v) email address. Cal OES will set up the account so the city or special district may submit an RPA, and add the applicant agency’s contact information to the information distribution list to receive all updates regarding the registration and application process through emails and periodic conference calls.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Douglas White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

Today, the U.S. Department of Labor (“DOL”) released regulations implementing the Families First Coronavirus Response Act (“FFCRA”). The FFCRA creates two new emergency paid leave requirements in response to the COVID-19 global pandemic: 1) the Emergency Paid Sick Leave Act (“EPSLA”), which entitles certain employees to take up to two weeks of paid sick leave; and 2) the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19.

The DOL’s regulations provide 125 pages of direction to employers as they implement and administer the new EPSLA and EFMLEA requirements. They are effective from April 1, 2020, through December 31, 2020.

The regulatory and legal response to COVID-19 is rapidly developing. Churchwell White will provide additional updates as we continue to assess the full text of the regulations.

A copy of the DOL’s regulations is available here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Barbara Brenner at Barbara@whitebrennerllp.com.

Some of our clients have asked what the law requires them to do to disinfect the workplace during the COVID-19 outbreak. While there are no specific legal mandates for disinfecting the workplace for general office environments, the Occupational Safety and Health Administration (“OSHA”) sets forth a general duty of care for employers to provide a safe workplace. OSHA’s guidance on COVID-19 recommends that the Centers for Disease Control and Prevention (“CDC”) Guidelines be followed for general office environments. OSHA’s guidance recommending the CDC guidelines be followed can be found here:

https://www.osha.gov/SLTC/covid-19/controlprevention.html#health

The CDC has specific recommendations, including using an Environmental Protection Agency (“EPA”) recommended disinfectant, which should be followed in order to comply with an employer’s general duty of care to provide a safe workplace. The guidelines can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/prepare/disinfecting-building-facility.html

If an employee or other person suspected to have been in contact with the COVID-19 virus has been in the workplace, the CDC recommends enhanced cleaning/disinfection procedures. Those procedures and additional recommendations for employers, including links to EPA recommended household disinfectants for use against COVID-19 can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html

Employees responsible for cleaning must be protected from exposure to hazardous materials and blood borne pathogens. In standard office environments where there is no known risk of contamination, instructing employees to follow the manufacturer labels on EPA recommended disinfectants and providing gloves should suffice. Where someone is sick in the workplace, the CDC notes additional protections may be warranted for employees tasked with cleaning, such as gowns, masks, and other appropriate personal protective equipment (“PPE”). Additionally, employers should ensure workers are trained on the hazards of the cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard. And, where there is possible exposure, employers should comply with OSHA’s standards on Bloodborne Pathogens.

OSHA notes that for most types of workers, the risk of infection with COVID-19 is similar to that of the general public. However, in keeping with the general duty of care, employers and workers in operations where there is no specific exposure hazard should remain aware of the evolving outbreak situation. Changes in outbreak conditions may warrant additional precautions in some workplaces.

The OSHA control and prevention page has additional information on requirements to protect first responders, healthcare, and wastewater workers, which applies to many of our clients. Those are more stringent and specific, and may be found on the CDC and OSHA websites.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Debra Hinshaw Vierra at debra@whitebrennerllp.com or Erin Dervin at erin@whitebrennerllp.com.

On March 27, 2020, Governor Gavin Newsom issued Executive Order N-37-20 (the “Order”), which imposes a statewide moratorium on residential evictions for nonpayment of rent related to COVID-19.

The Order builds on previous Executive Order N-28-20, which authorized local governments to suspend evictions for commercial and residential renters during the COVID-19 state of emergency. Now, under this Order, all residential tenants statewide cannot be evicted if they cannot pay rent due to COVID-19. The Order also prohibits enforcement of evictions of residential tenants who are unable to pay rent due to COVID-19 while the Order is in effect.

Residential tenants are not completely off the hook for rent, however. The Order requires tenants to declare in writing, no more than seven days after the rent comes due, that the tenant cannot pay all or part of their rent due to a COVID-19-related economic hardship. Tenants are required to document their inability to pay but are not required to submit the documentation to their landlord in advance. The Order does not relieve tenants of liability for unpaid rent and Governor Newsom has stated that tenants will be required to pay the back-due rent in a timely manner.

In addition, the Order does not prohibit residential evictions for reasons other than non-payment of rent. Tenants who can pay all or some of the rent due are still obligated to pay that rent in a timely manner and could still face eviction when the moratorium is lifted.

Further, the statewide moratorium on evictions only applies to residential tenants. It does not apply to commercial properties. However, the Order does not invalidate provisions of Executive Order N-28-20 about commercial evictions and foreclosures. Thus, even though there is no statewide enforcement, banks and other financial institutions are still encouraged to halt foreclosures and related evictions and local governments are still authorized to impose limitations on commercial evictions.

A copy of the Order can be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com or Nubia Goldstein at Nubia@whitebrennerllp.com.

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law, marking the second major legislative initiative to address COVID-19. The key provisions of the FFCRA address emergency paid sick leave and expanded medical leave requirements. On March 24, 2020, the U.S. Department of Labor (“DOL”), in advance of issuing its full regulations, published guidance to help explain the FFCRA.

The DOL confirmed that the paid leave provisions of the FFCRA apply to leave taken between April 1, 2020 and December 31, 2020. The emergency paid sick leave and paid expanded family and medical leave requirements are not retroactive. Thus, any leave that was granted by an employer for reasons covered under the FFCRA prior to April 1, will not be counted toward the entitlement under the Emergency Paid Sick Leave provisions of the FFCRA.

Private sector employers are only required to comply with the FFCRA if they have fewer than 500 employees. The guidance clarifies how businesses can calculate the number of employees for purposes of the FFCRA. Businesses have fewer than 500 employees if, at the time the employee’s leave is to be taken, the business employs fewer than 500 full-time and part-time employees within the United States.

The FFCRA also includes exemptions for small businesses with less than 50 employees. Businesses should not send any materials to the DOL when seeking a small business exemption for emergency paid sick leave and expanded family and medical leave. However, small businesses with less than 50 employees will be required to document why they meet criteria for exemption for childcare-related paid sick leave. The DOL has indicated that the forthcoming regulations will address exemptions for small businesses.

The guidance from the DOL clarifies how employers count hours for part-time employees, how to calculate an employee’s regular rate of pay, and whether to calculate overtime hours when paying employees under the FFCRA. A part-time employee is entitled to leave for the average number of hours worked in a two-week period, based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, employers may use a six-month average to calculate the average daily hours. If the employee has not been employed for at least six months, use the number of work hours agreed to upon hiring. When calculating pay, overtime hours must be included.

Further, the DOL clarified that each full time employee may take a maximum of 80 hours of emergency paid sick leave (part time employees may take a maximum of the average number of hours worked in a typical two week period) regardless of the number of qualifying reasons the employee may have to take time off.  However, employees who are out of work due to school/childcare closures may take up to an additional 10 weeks (for a total of 12 weeks) of childcare-related paid expanded family and medical leave.

The full text of the FFCRA is available here.

The DOL’s Families First Coronavirus Response Act: Questions and Answers are available here.

Further DOL guidance for employers on the FFCRA is located here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Steve Churchwell at Steve@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Barbara Brenner at Barbara@whitebrennerllp.com.

Public agencies (counties, cities, and special districts) may incur emergency-related expenses while responding to COVID-19. Will aid from the state or federal government be available?

Yes, for eligible emergency-related expenses. The Federal Emergency Management Agency (“FEMA”) already has procedures in place to handle reimbursement requests from public agencies related to the COVID-19 response. Cities and special districts that have incurred at least $3,300 in emergency-related expenses may be eligible for reimbursements from FEMA. FEMA coordinates with the California Governor’s Office of Emergency Services (“Cal OES”) to implement the Public Assistance Program. FEMA provides funds for approved public assistance requests to Cal OES, who then distributes public assistance awards. The federal stimulus package, seemingly on its way toward approval, is expected to increase funding for state and local government emergency-related expenses.

What are eligible reimbursable expenses for public agencies?

For the COVID-19 emergency, eligible reimbursable expenses for public agencies are limited to activities within Category B, Emergency Protective Measures. Emergency Protective Measures are those related to the management, control, and reduction of the COVID-19 public health threat. Such measures must be consistent with direction or guidance from public health officials. Examples include:

• Expenses related to protecting personnel (e.g., sanitization of facilities, retooling employees for telework, replenishing materials stockpiles);
• Communicating health and safety information to the public;
• Emergency Operation Center-related costs;
• Purchase and distribution of necessary supplies and equipment; and
• Emergency medical care (e.g., treatment, facilities, shelters, equipment, transport).

Takeaway: Keep track of direction and guidance from public health officials, and keep track of expenses that may be associated with responding to COVID-19.

My public agency provides utility service (e.g., water service). As part of the COVID-19 response, what if we continue providing utility service without payment? Will these costs be eligible for reimbursement?

Possibly. FEMA does not provide public assistance funding for lost revenue as a result of COVID-19. However, if a city, county, or the state mandates continued service despite nonpayment, then these costs may become eligible for reimbursement. This is because continued service keeps residents in their homes – a critical part of the COVID-19 emergency response. Also, if a continued service order comes down, it is possible these expenses are attributable to the ordering agency instead of the utility provider. Therefore, special districts should be prepared to coordinate with cities and counties to submit requests for public assistance.

When should my public agency submit a Request for Public Assistance (“RPA”) to FEMA?

As soon as your agency has incurred, or anticipates incurring, emergency-related expenses. Eligible expenses may be further formulated during the RPA process. FEMA has already extended the deadline for RPAs. The window for RPAs related to COVID-19 will remain open until the federal government declares otherwise.

If my public agency plans to submit a Request for Public Assistance, what must we make sure of?

RECORDS, RECORDS, RECORDS. Maintain and track records of all possible emergency-related expenses incurred as a result of your agency’s COVID-19 response. Supporting documentation will be required for all claimed expenses and also must be able to withstand a FEMA audit. Retain all documents related to, for example: personnel costs, used/purchased/rented materials, contractual services, donated resources and volunteer time, mutual aid resources provided/received.

How do I submit a Request for Public Assistance to FEMA?

• FEMA administers aid through its online Public Assistance Grant Portal (available at https://grantee.fema.gov/).
• Confirm whether you have a registered account for FEMA’s Grant Portal.
  • If your public agency has previously submitted an RPA to FEMA using this system, then you should already have an account.
  • If your public agency has not previously submitted a request to FEMA using this system, contact Cal OES by sending an email to disasterrecovery@caloes.ca.gov. Cal OES will set up your account so you can then submit an RPA. Provide the following information to Cal OES: (i) subject; (ii) name of your agency; (iii) name of contact person; (iv) phone number; (v) email address.
• Follow the procedures in FEMA’s Public Assistance Grant Portal.

Additional Helpful Links:

• Guidelines for FEMA’s Simplified Application for COVID-19 Public Assistance: https://www.fema.gov/news-release/2020/03/23/coronavirus-covid-19-pandemic-public-assistance-simplified-application
• FEMA YouTube Guide to Requests for Public Assistance: https://www.youtube.com/watch?v=Uq9rc5h5gkU
• FEMA Fact Sheet Regarding Eligible Emergency Protective Measures: https://www.fema.gov/news-release/2020/03/19/coronavirus-covid-19-pandemic-eligible-emergency-protective-measures
• Cal OES Information Related to Federal Public Assistance: https://www.caloes.ca.gov/cal-oes-divisions/recovery/public-assistance/federal-disaster-assistance

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, Barbara Brenner at barbara@whitebrennerllp.com, Douglas White at doug@whitebrennerllp.com, or Nubia Goldstein at nubia@whitebrennerllp.com.

On March 23, 2020, California’s Chief Justice, Hon. Tani Cantil-Sakauye, issued a Statewide Order (the “Order”) concerning the operations of California’s courts during the COVID-19 emergency. The courts will continue to operate during the emergency as essential services, exempt from the statewide shelter-in-place Executive Order N-33-20 currently in effect, but will postpone all jury trials statewide for 60 days and authorize county superior courts to enact new rules or amend their existing rules as needed to address court business during the emergency.

The Order explains that because court proceedings often require gatherings of court staff, litigants, attorneys, witnesses, and juries that exceed the permissible numbers for gatherings under the current directives from the Governor and the Director of Public Health, the courts must make adjustments to comply with these restrictions and with social distancing measures.

Also, many court employees, litigants, and others cannot attend court proceedings because they need to stay home to care for their children, due to the current school closures. These circumstances, the Order explains, have also “made it nearly impossible to assemble juries.” Accordingly, the Chief Justice has ordered that:

• All jury trials are postponed for 60 days from the date of the order, although courts may conduct a trial at an earlier date upon a showing of “good cause” by the parties or through use of remote technology when appropriate.
• The time periods to begin criminal and civil trials is extended for 60 days, although courts may conduct trials earlier upon a showing of good cause or through remote technology when appropriate.
• The mandatory five-year deadline for bringing civil cases to trial under Code of Civil Procedure section 583.310 is extended by 60 days, and the deadlines under section 583.20 for bringing civil matters to trial after a new trial is granted are also extended by 60 days. Courts may conduct trials earlier upon a showing of good cause or through remote technology when appropriate.
• County superior courts are authorized to adopt any proposed rules or rule amendments to address the impact of the COVID-19 pandemic, which may take effect immediately without advance circulation for 45 days of public comment. A superior court adopting any such rule or amendment must provide a copy to the Judicial Council of California, post notice of the change and the new effective date on the court’s website, and immediately distribute the new or amended rule. No litigant’s substantive rights will be prejudiced for failing to comply with the requirements of a new or amended rule until at least 20 days after the rule change has been distributed.

As stated above, court operations will continue during the emergency. To obtain the latest information for a specific court or jurisdiction, litigants should contact the superior court of the county in which their matter is pending or check that court’s website. A statewide directory of county superior courts and Courts of Appeal may be found here. Churchwell White LLP clients with pending cases are always welcome to contact our office to receive the latest information on how these developments may affect their cases.

If you have any questions or concerns, please contact the offices of Churchwell White at (916) 468-0950, or Douglas White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

On March 19, 2020, Governor Newsom issued Executive Order N-33-20 (the “Order”), which directs all California residents to stay at home except those individuals working in “Essential Critical Infrastructure Sectors.” The Order also acknowledges that supply chains must continue so that Californians can access necessities such as food, prescriptions, and healthcare. Businesses that provide products and services related to these necessities are permitted to continue operations. The Order requires all other businesses to cease all activities at facilities located in California.

The full text of the Order may be found here.

To clarify the Order, the State Public Health Officer published a list of Essential Critical Infrastructure Sectors. Businesses that fall into one or more of these sectors may continue operations during the COVID-19 state of emergency. The list designates the following as Essential Critical Infrastructure Sectors:

• Healthcare/Public Health
• Emergency Services
• Food and Agriculture
• Energy
• Water and Wastewater
• Transportation and Logistics
• Communications and Information Technology
• Community-Based Government Operations and Essential Functions
• Critical Manufacturing
• Hazardous Materials
• Financial Services
• Chemical
• Defense Industrial Base

The list also includes a comprehensive description of workers, employees and contractors who fall into each Essential Critical Infrastructure Sector. These individuals are permitted to report to work to ensure that essential operations continue uninterrupted. A complete list of the workers who support these critical sectors is available here.

In addition to the statewide order to stay at home, several counties and cities have adopted shelter-in-place ordinances. The ordinances generally prohibit gatherings of individuals outside the home, with certain exceptions for essential activities or essential travel, to perform work for essential businesses and government agencies, or perform essential infrastructure work. Employers that are not essential businesses or government services must take all steps necessary for employees to work remotely from home to the extent possible. Local law enforcement officials are tasked with determining which business are essential. Businesses found to be violating shelter-in-place ordinances may receive administrative penalties, such as licensure revocation and fines.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Steve Churchwell at Steve@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Randy Pollack at Randy@whitebrennerllp.com.

On March 19, 2020, Governor Newsom issued Executive Order N-33-20 (the “Order”), which directs all California residents to stay home unless needed to maintain operation of essential critical infrastructures. Government entities and public agencies are tasked with determining which functions and operations are critical or essential and designating employees that are essential to maintaining those operations and functions.

The full text of the Order may be found here.

Some determinations are easy. Obviously, first responders and public safety employees perform essential functions in all aspects of their work. However, other determinations are less clear cut.

Some employees perform a mix of essential and non-essential functions, and what is considered an essential function may evolve over time. For example, an employee in a maintenance position may be responsible for landscaping. Keeping flower beds weeded might not be a critical function, but keeping tree branches trimmed away from power lines is certainly essential. Should the Order stay in place as we move into summer, weeding public landscapes will be critical for fire control, a very essential function in California. Thus, public agencies should determine which duties within each job classification are essential now and which duties may become essential in the future.

In addition to the statewide Order, several counties and cities have adopted shelter-in-place ordinances. Local law enforcement officials are enforcing these ordinances, and, in some counties, law enforcement officers have been stopping people to ensure compliance. Public agencies should prioritize the designation of essential employees and provide each such employee with documentation of their designation.

To aid in this analysis, the State Public Health Officer has published a comprehensive list of essential critical infrastructure workers, which can be found here. Our office can provide additional guidance on designating essential employees and a template for documentation notifying employees of their designation.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Doug White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

To protect public health and safety during the COVID-19 pandemic, Governor Newsom has issued Executive Order N-34-20 (the “Order”). The Order seeks to maintain social distancing measures while preserving the integrity of the elections process. It contains three main provisions important to all local governments and special districts, and has the potential to affect future elections at the local, state, and federal levels.

First, the Order extends the deadlines for ballot counting, tabulation, and other responsibilities related to the official canvass of California’s March 3, 2020 Presidential Primary Election by 21 days in order to avoid undermining social distancing measures. County elections officials are encouraged to meet the current deadlines if possible. The Secretary of State is to provide guidance to county elections officials to ensure compliance with the new deadline. This affects all offices and measures on the March 3, 2020 ballot, including the elections of local officials of cities, special districts, school boards, and other bodies.

Second, the Order suspends the timeframes for public hearings required by political subdivisions that are in the process of changing from an at-large method of election to district elections, until social distancing measures are lifted in the jurisdiction. After that time, those jurisdictions are to hold the required hearings in a manner that allows sufficient advance public notice and the opportunity to participate in the postponed hearings. Jurisdictions are urged to reach out to disabled individuals, non-English speakers, and others with particularized needs as necessary to ensure their participation.

Finally, the Order permits vote-by-mail procedures for three upcoming special elections: one in the City of Westminster to recall the mayor and two City Council members, one for the U.S. House of Representatives seat for portions of Los Angeles and Ventura counties, and the third for a State Senate seat for Riverside County. In addition to vote-by-mail, county elections officials are also authorized and encouraged to allow in-person voting on or before Election Day for each of these elections, subject to social distancing practices, to maximize voter accessibility. All deadlines for completing, auditing, and reporting on the official canvass of these special elections are also extended by 21 days.

While this last section applies specifically to the jurisdictions mentioned, the outcomes of these hybrid in-person and vote-by-mail elections could affect future elections and should be watched closely. This is particularly noteworthy as these elections involve city, state, and federal offices.

The full text of the Order may be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Steve Churchwell at Steve@whitebrennerllp.com, Douglas White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

To better assist local governments in responding to the COVID-19 emergency, Governor Newsom has issued Executive Order N-35-20 (the “Order”). The Order suspends certain Brown Act restrictions for COVID-19 updates, extends the waiver of work hour restrictions to local governments, suspends local enforcement of ordinances that impede the provision of emergency services, and extends certain deadlines for government claims and reimbursements for prison-related claims. The Order has several important implications for local governments.

First, regarding the Brown Act, the Order allows all members of a local legislative body or state body to receive updates from federal, state, and local officials, including simultaneous updates, concerning the impact of COVID-19, the government’s response to COVID-19, and other aspects relevant to the declared state of emergency. Further, the local body members may ask questions of those officials, to stay apprised of emergency operations and the impact of those operations on their constituents.

Importantly, however, the Order does not do the following:

• The Order does not permit the members of the local legislative body to take action on or discuss amongst themselves any item of business within the jurisdiction of the local body. For these actions, the Brown Act still applies.
• The Order also does not affect last week’s executive order permitting teleconferencing for public meetings, including meetings of City Councils, Special Districts, School Boards, and other bodies. That executive order, issued March 17, 2020, remains valid and effective. For more details about last week’s order, see our client alert, “Governor Issues Executive Order to Clarify Suspension of Open Public Meeting Laws,” available at www.whitebrennerllp.com/news/.

Second, the suspension of laws regarding reinstatement and work hour limitations for retired annuitants and others, as described the Governor’s March 12, 2020, executive order, are now extended to local governments to ensure adequate staffing to respond to the COVID-19 pandemic. For more details regarding the scope and particulars of the March 12 order, see our client alert, “Work Hour Limitations For Retired Annuitants Suspended During COVID-19 Pandemic,” also available at www.whitebrennerllp.com/news/.

Third, the Order suspends any local ordinance, including noise restriction ordinances, to the extent such ordinances impede the delivery of food products, pharmaceuticals, and other emergency necessities sold at grocery stores or distributed through hospitals, jails, restaurants, schools, and other institutional channels. Cities should review their municipal codes to determine which provisions may be construed as impeding the delivery or food and emergency necessities and, where possible, consider adopting ordinances to comply with the Order while providing clear direction to any impacted local residents and businesses.

Fourth, the Order extends the deadline to file a claim against local governments under the Government Claims Act (Cal. Gov. Code section 911 et. seq.) by 60 days, and the time within which the government agency may act upon the claim is also extended by 60 days.

Finally, the Order grants a 60-day extension of the deadline under Penal Code section 475, subdivision (j), for cities and counties to seek reimbursement from the state for expenses incurred as a result of crimes committed by prisoners within the local jurisdiction.

The full text of the Order may be found at here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or Douglas White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

With all of California now under a statewide shelter-in-place order from the Governor to protect against the spread of COVID-19, cities must evaluate how to enforce this order and related county and local orders within their boundaries.

Cities may enforce these orders through the administrative citation process. The local emergency provisions of the California Emergency Services Act, Government Code section 8634, et seq. (“ESA”), authorizes the governing body of a political subdivision, through its designated officials, to issue orders and regulations necessary to protect life and property during local emergencies, such as curfews and “stay at home” or “shelter in place” orders. In many cities’ municipal codes, the designated official is the Director of Emergency Services (“Director”), usually the City Manager or City Administrator.

The ESA, however, only provides criminal penalties for violations of an order issued by the City Council or the Director. Under the ESA, such violations are misdemeanors, subject to a $1,000 fine or 6 months in prison. (Gov. Code, § 8665.) Enforcement of a shelter-in-place order through these criminal penalties may prove too burdensome or problematic for City or County law enforcement officials, and be quite unsettling for residents already under the stress of the COVID-19 pandemic.

Rather, cities are encouraged to enforce COVID-19 orders issued by the Director through administrative citations. Consistent with the ESA, many cities’ municipal codes currently provide that violations of the Director’s orders are misdemeanors. However, cities should consider passing urgency ordinances to provide that violations of the Director’s orders are a violation of the municipal code and subject to administrative citation under the code.

In summary, to invoke and exercise their enforcement authority under the ESA, cities should take the following steps:

• Issue a proclamation of local emergency if it has not already done so;
• Adopt the statewide shelter-in-place order, as well as the county’s order if one has been issued, through an urgency ordinance;
• Include a reference to the City’s administrative citation provisions in its municipal code, to declare that the statewide shelter-in-place order and any county order(s) may be enforced through administrative citations pursuant to the City’s authority under Government Code section 53069.4 to “make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty;” and
• Consider an increased fine schedule. For example, a first violation may result in an administrative citation and a $250 fine, and $500 for a second violation, and $1,000 for a third and subsequent violations. Cities may also consider allowing enforcement officers discretion to issue warnings for initial violations.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Douglas White at Doug@whitebrennerllp.com or Nubia Goldstein at Nubia@whitebrennerllp.com.

On March 16, 2020, Governor Newsom issued Executive Order N-28-20 (the “Order”), to help protect Californians from losing their homes or businesses as a result of the statewide measures taken to combat the COVID-19 pandemic, while also strengthening local governments’ discretion to take the steps they deem necessary to support their local economies. The Order broadly impacts municipalities, public and private utility providers, landlords, individuals, and businesses in several ways.

First, the Order grants local governments full authority to suspend or limit all residential and commercial evictions during the emergency period, where the eviction is either (1) due to non-payment of rent or a foreclosure due to a substantial decrease in household or business income (whether through layoffs, reduced working hours, or a downturn in business), or (2) due to substantial out-of-pocket medical expenses caused by the COVID-19 pandemic or any documented local, state, or federal government response to the pandemic.

The Order will suspend enforcement of the California Code of Civil Procedure provisions governing judicial foreclosures, unlawful detainers, and any other state law used to evict residential or commercial tenants, where a local government has imposed a limitation on enforcement of those provisions, and only to the extent of that local government’s limitation. Importantly, the Order does not relieve any tenant of the obligation to pay rent, or restrict a landlord’s ability to collect rent due.

Further, the Order extends the time period of California Penal Code section 396, subdivision (f), to May 31, 2020. That section makes it unlawful to evict a residential tenant after a declaration of a national, state, or local emergency for 30 days following the declaration, and rent to another person at a price greater than the evicted tenant could be charged.

Additionally, the Order directs the California Public Utilities Commission to monitor measures taken by municipal and other utility providers to implement customer service protections in response to COVID-19 for critical utilities, including electric, gas, water, internet, landline telephone, and cell phone service, and to report these measures on a weekly basis.

Finally, the Order requests that public housing authorities extend deadlines for applicants to document their eligibility, that certain state agencies work with financial institutions to identify ways to provide Californians relief from the threat of foreclosure, and that banks and other mortgage holders implement an immediate moratorium on foreclosures and evictions for homeowners impacted by COVID-19 related costs.

The full text of the Order may be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Douglas White at Doug@whitebrennerllp.com, Barbara Brenner at Barbara@whitebrennerllp.com, or Nubia Goldstein at Nubia@whitebrennerllp.com.

Yesterday, Governor Newsom issued Executive Order N-29-20 (the “Order”), superseding portions of last week’s Executive Order N-25-20, related to California’s open public meeting laws.

This Order clarifies that local and state legislative bodies are not required to provide “at least one publicly accessible location from which members of the public may remotely observe and offer comment,” subject to certain notice requirements.

The Order continues to authorize local and state legislative bodies to hold public meetings via teleconferencing and make the public meetings accessible telephonically or otherwise electronically to all members of the public who wish to observe and address the local or state body.

Meetings by teleconference will satisfy all Bagley-Keene and Brown Act requirements so long as the local and state bodies do the following:

• The body must implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation for disabled individuals, consistent with the Americans with Disabilities Act, in favor of accessibility; and
• The body must advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer comment, consistent with the notice requirements below; and
• The body must give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes required by the Bagley-Keene Act or the Brown Act; and
• At the same time it posts the meeting time and agenda, the local or state body must also give notice of the means by which members of the public may observe the meeting and offer public comment, whether by teleconference call-in number or otherwise. Should the means of public observation and comment change, or for any meeting agenda that was posted before this Order was issued that did not provide notice of such means, a body can meet this requirement by posting notice of such means on its website.

These requirements will apply only during the period in which state or local public health officials have imposed or recommended social distancing measures.

As before, this new Order continues to urge state and local governments to “use sound discretion and… to adhere as closely as reasonably possible” to the requirements of California’s open meeting laws as the state continues its efforts to address the COVID-19 pandemic. The full text of Executive Order N-29-20 may be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Douglas White at doug@whitebrennerllp.com or Nubia Goldstein at nubia@whitebrennerllp.com.

To ensure adequate state staffing to expedite the emergency response and recovery, Governor Newsom signed Executive Order N-25-20 (the “Order”) on March 12, 2020. Among other things, the Order suspends the work hour limitations for retired annuitants who work in CalPERS-covered service during the COVID-19 state of emergency.

On March 18, 2020, CalPERS issued Circular Letter 200-015-20 (the “CalPERS Letter”) to inform public agencies of the impact of the Order on CalPERS retirees employed as retired annuitants with all CalPERS employers. The CalPERS letter explains that, under the Order, any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency will not be counted toward the 960-hour limit for the fiscal year. The 180-day break in service requirement and the 60-day separation in service requirement are suspended during the state of emergency.

These work hour limitations for retired annuitants will be suspended from March 4, 2020, when the state of emergency was declared, until the emergency is lifted.

Public employers must continue to comply with legal requirements for compensation and benefits, as set forth in the Government Code. Agencies must continue to enroll and report retired annuitants to CalPERS. They must also notify the Director of the California Department of Human Resources of any individual employed under these waivers by sending notice to CAStateofEmergency@calhr.ca.gov.

Further, a retired annuitant cannot receive any benefit, incentive, compensation in lieu of benefits, or other compensation beyond the hourly pay rate. Any predetermined agreement between an employer and an impending retiree who has not attained normal retirement age remains in effect, consistent with federal law.

The full text of Executive Order N-25-20 may be found here, and CalPERS Circular Letter 200-015-20 may be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Douglas White at Doug@whitebrennerllp.com, Nubia Goldstein at Nubia@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Erin Dervin at Erin@whitebrennerllp.com.

In response to the ongoing concerns over the transmission of COVID-19, Governor Gavin Newsom today issued Executive Order N-25-20 (the “Order”), which affects certain public meeting laws, including the Brown Act and Bagley-Keene Open Meeting Act. Among other things, the Order authorizes local and state legislative bodies to hold public meetings via teleconference and to make meetings accessible electronically to all members of the public and allow public comment.

The Order is effective during the period in which social distancing measures and limitations on public events are also in effect. The Order follows hard on the heels of the guidance issued yesterday by the California Department of Public Health and Governor Newsom’s announcement urging that all large, non-essential gatherings, statewide, of 250 or more people be canceled or postponed at least through the remainder of March 2020.

The Order temporarily suspends certain provisions of both the Bagley-Keene Act and the Brown Act that require the physical presence of the members, clerk, or other personnel of the legislative body, including the quorum requirement, and that require members of the public be physically present in order to participate in the meeting.

Specifically, the following requirements are suspended:

• That state and local bodies notice each teleconference location from which a member will be participating in a public meeting;
• That each teleconference location be accessible to the public;
• That members of the public may address the body at each teleconference location;
• That state and local bodies post agendas at all teleconference locations;
• That at least one member of the state body be physically present at the location specified in the notice of meeting; and
• That during teleconference meetings, at least a quorum of the members of the local body participate from locations within the boundaries of the territory over which the local body exercises jurisdiction.

In order for the above requirements to be suspended, each state or local body must do the following:

• Give advance notice of each public meeting as otherwise required by the Brown Act or Bagley-Keene Act, and using the means otherwise required by those acts; and
• Notice at least one publicly accessible location from which members of the public may remotely observe and offer comment at the public meeting, and in a manner consistent with the requirements of the federal Americans with Disabilities Act.

Each city or local agency will need to determine, based on its own facilities, technological capabilities, infrastructure and other factors, a suitable “publicly accessible location” to allow remote viewing and comment by the public.

The Order urges state and local bodies to “use sound discretion and to make reasonable efforts to adhere as closely as possible to the provisions of the Bagley-Keene Act and the Brown Act, and other applicable local laws regulating the conduct of public meetings, in order to maximize the public access to their meetings.” The full text of the Order may be found here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950, or email Douglas White at Doug@whitebrennerllp.com or Nubia Goldstein at Nubia@whitebrennerllp.com.