Yesterday, on May 7, 2020, Governor Gavin Newsom announced in a press conference that the state was moving into Stage 2 of a four-stage plan for reopening California that he had put forth only last week.  He characterized this transition—which he previously said could be “weeks” in the offing—as a switch from dividing businesses into essential vs. non-essential into dividing non-essential businesses into lower risk (e.g., curb-side retail sales) and higher risk (e.g., large indoor gatherings).  He also announced the basic standards that counties will have to meet if they wish to move at a faster pace in reopening than the rest of the state.  Importantly, however, Governor Newsom cautioned that the process of reopening the state of California is constantly evolving and that state guidelines may change as events—and public health—dictate.

The Transition To Stage 2 

In the short time since Governor Newsom’s phased reopening plan was announced, several rural counties in northern California defied the state’s guidance by quickly moving forward with reopening their local economies and a number of closed businesses—such as barbershops, hair salons, and beauticians—challenged the legality of the plan.  Nevertheless, Governor Newsom emphasized that he made the decision to move into Stage 2 because the state had begun to meet certain public health goals embodied in the six guiding indicators that he had laid down in mid-April.  He cautioned, however, that continued success in meeting these goals was by no means guaranteed.

Accordingly, he announced that the state would ease into Stage 2 in phases.  For example, starting on May 8, businesses such as bookstores, sporting goods stores, florists, clothing stores, and jewelry stores may open for delivery or curbside pickup—subject to certain public health requirements and recommendations including allowing customers to pay using hands-free devices and having employees wear gloves and a mask for car drop-off.  Businesses in the supply chain that help support these establishments will be allowed to begin operation as well.

In order to reopen, such businesses must meet state guidelines, which—as a general matter—include:

• Performing a detailed risk assessment and implementing a site-specific protection plan;
• Training employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
• Implementing individual control measures and screening;
• Implementing disinfecting protocols; and
• Implementing physical distancing guidelines.

The California Department of Industrial Relations (CalOSHA) also released new, specific guidelines for 17 industries or sectors.  To take just one example, to be in compliance with new guidelines issued by CalOSHA, manufacturing operations need to be able to restrict non-employees from entering any facilities and take measures such as shift-staggering to minimize the number of people on site at any one time.  Relatedly, manufacturers should convert outdoor areas into breakrooms, and warehouses should carry sanitizing supplies for making deliveries.

Finally, all businesses opening in Stage 2 will be strongly encouraged to post an industry-specific checklist that explains the steps they are taking to follow state guidelines.

That said, Governor Newsom made clear that a wide array of businesses—including some that were previously identified as reopening during Stage 2—will reopen at some unspecified point in the future as part of a second wave of Stage 2 reopenings.  This group includes shopping malls, personal services such as car washes and pet grooming, dine-in restaurants, schools, childcare centers, and outdoor museums.  This later wave of Stage 2 openings will also include some offices (although telework will be strongly encouraged) and some businesses in the logistics and manufacturing sectors.   

Governor Newsom also reemphasized that businesses and activities that require people to be in close proximity to each other will not be permitted to reopen until after the state formally moves into Stage 3—an event that he has indicated will occur in the next few months.  These Stage 3 entities include gyms and tattoo parlors, bars and nightclubs, indoor museums, religious services and cultural activities, hotels, and concerts.

“Regional Variance”:  Counties Permitted To Move At Their Own Pace 

Governor Newsom acknowledged that there could be “regional variance” in the pace at which counties move through Stage 2.  (The state website makes clear, however, that no county will be permitted to move into Stage 3—which, again, includes reopening businesses like gyms, hair salons, and movie theaters—at this time).   In broad strokes, for a county to quickly progress through Stage 2, the county’s public health officer must consult with the California Department of Public Health and submit a written attestation that the county has met the following criteria:

• The county has seen no more than 1 COVID-19 case per 10,000 residents in the past 14 days;
• There has not been a single COVID-19 death in the county in the past 14 days;
• Guidance has been developed for employers and essential critical infrastructure workplaces on how to structure the physical environment to protect essential workers;
• There is sufficient disinfectant and protective equipment for essential workers;
• There is a minimum daily testing volume of 1.5 per 1,000 residents (although the state indicated that low-density counties might be able to argue that this requirement should not apply to them);
• Testing is readily available for 75% of the county’s population;
• There is sufficient contact tracing to accurately measure the spread of the virus;
• Housing is available for at least 15% of the county’s homeless population;
• Local hospitals have a plan to deal with a COVID-19 surge and enough personal protective equipment to protect doctors and nurses if this happens; and
• There is a plan in place for caring for vulnerable populations, such as the elderly in nursing homes.

While not mandatory, the state also strongly recommends that counties develop a COVID-19 containment plan that lays out what the county will do to meet the guidelines above and how the county will collaborate with the governments of its cities and neighboring counties.  Finally, the county board of supervisors and local hospitals must also write letters of support for the plan.  Governor Newsom also announced that more detailed guidelines will be provided to counties on how to progress through Stage 2 by Tuesday, May 12, 2020.

Notably, local governments are already beginning to plan for Stage 2.  On the same day as Governor Newsom’s announcement about the state entering Stage 2, San Francisco Mayor London Breed announced that many of the city’s retail establishments will be open for curbside pick-up on May 18, and the City of Los Angeles announced that curbside pickup for some businesses could begin as early as May 8.  Counties, too, are moving forward.  For example, Ventura County in southern California has already stated that it is making progress in meeting the requirements to enter the second phase of Stage 2.   Governor Newsom’s plans have, however, already drawn some early criticism, with at least one locality suggesting that requirements for reopening ahead of the state—such as the requirement of zero COVID-19 deaths in the prior two weeks—are too onerous. 

WilmerHale’s attorneys are continuing to monitor the fluid situation regarding California’s reopening, and will keep its clients informed about any important changes.