Download pdf: 25-2020 – Sonoma County Strengthens and Extends Shelter in Place w attachments (DLM-SHS-JH)

Sonoma County’s Public Health Officer revised the Shelter in Place Order, effective today, April 1, 2020, through May 3, 2020, or until it is rescinded or revised (“Order”).[1] The Order was issued in light of the existence of 73 active cases of COVID-19 in Sonoma County, as well as 1 fatality, as of March 31, 2020.[2] The County has confirmed through testing that every section of the County suffers from infection. Overall, the intent of the order is to maximize self-isolation in residences to the maximum extent feasible. The Order incorporates all State and Federal mandates. While much remains unchanged from the previous order, there are some new aspects to this Order which affect local education agencies (“LEAs”), including guidance on construction projects and notice requirements. Violation of the Order is enforceable by law enforcement, and “constitutes an imminent threat and menace to public health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.”

Generally

Under the Order, County residents may only leave their homes to perform: Essential Activities, Essential Governmental Functions, to work for Essential Businesses, or to perform Minimum Basic Operations for non-essential businesses.

“Essential Activities” means activities necessary for a person’s own health and safety (such as urgent medical appointments and groceries), and does not include construction.

“Essential Governmental Functions” is defined as a function that is “determined [essential] by the governmental entity performing those functions in the County.”

“Essential Businesses” includes educational institutions, defined as public and private K-12 schools, colleges, and universities, for purposes of facilitating distance learning or performing Essential Functions, provided that social distancing of six-feet per person is maintained.

Essential Businesses are directed to maximize the number of employees who work from home. Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.

Residents are to employ the following social distancing and hygiene requirements, which have not changed from the previous order:

Maintain at least six-foot social distancing from individuals who are not part of the same household or living unit;
Frequently wash hands with soap and water for at least 20 seconds, or using hand sanitizer that is recognized by the Centers for Disease Control and Prevention as effective in combatting COVID-19;
Cover coughs and sneezes with a tissue or fabric or, if not possible, into the sleeve or elbow (but not into hands); and
Avoid all social interaction outside the household when sick with a fever or cough.

Notice of Social Distancing Protocol

Under the Order, all Essential Businesses, including educational institutions, shall prepare, post, and implement a Social Distancing Protocol at each of their facilities at which they are maintaining operations by no later than 11:59 p.m. on April 2, 2020.

The Social Distancing Protocol must be substantially in the form provided by the County (see attached) and must be provided to each employee performing work at the facility. In addition, the Protocol must be posted at or near the entrance of any relevant facility and must be easily viewable to the public and employees. Finally, Essential Businesses must post a sign at the entrance of the facility informing all employees to not enter if sick, maintain a six foot distance, cough and sneeze into one’s elbow, and refrain from any unnecessary physical contact. We have attached a model sign to this Legal Update for your use.

Child Care Facilities

The Order requires, “to the extent possible,” that childcare facilities operate under the following conditions:

Childcare must be carried out in stable groups of 12 or fewer (“stable” means that the same 12 or fewer children are in the same group each day).
Children shall not change from one group to another.
If more than one group of children is cared for at one facility, each group shall be in a separate room. Groups shall not mix with each other.
Childcare providers shall remain solely with one group of children.

Essential Government Functions

Each governmental entity must identify and designate appropriate employees, volunteers, or contractors to continue providing and carrying out any Essential Governmental Functions, including the hiring or retention of new employees or contractors to perform such functions. Each governmental entity and its contractors must employ all necessary emergency protective measures to prevent, mitigate, respond to and recover from the COVID-19 pandemic, and all Essential Governmental Functions must be performed in compliance with social distancing and hygiene requirements, described above, to the greatest extent feasible.

Travel

People must use public transit only for purposes of performing Essential Activities or to travel to and from work to operate Essential Businesses or maintain Essential Governmental Functions. The Order permits travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services. People riding on public transit must comply with social distancing and hygiene requirements. The Order allows travel into or out of the County to perform Essential Activities, to operate Essential Businesses, or maintain Essential Governmental Functions. Hotels and short-term lodgings are permitted to rent to those involved in an Essential Business or an Essential Governmental Function to the degree the guest is engaged in such activities while lodging.

Construction

An Essential Business includes construction, but only:

1) Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;

2) Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so;

3) Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed; and

4) Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the habitability, sanitation, and operation of residences and Essential Businesses, but not for cosmetic or other purposes.

Essential Business also includes: Projects immediately necessary to the maintenance, operation or repair of Essential Infrastructure. Essential Infrastructure is not defined but includes airports, utilities, roads, public transportation, mortuary services, and telecommunication services. It is important to note that in the County’s March 17, 2020 Order, “public works construction” was listed as an Essential Infrastructure project. In this Order, which supersedes the prior Order, Public Works Construction is now considered an “Essential Business” only if it is designated as an Essential Government Function by the lead government agency.

Reading the various provisions of the Order together, public works construction projects may only continue if the LEA makes written determination that the project is an Essential Governmental Function, or is necessary to ensure that a building is safe, sanitary, or habitable so that a district can continue to provide the Essential Functions of distance learning and/or providing food to students. Such a project may also only continue if the posting and compliance of required social distancing measures are followed. Otherwise, the only work that can occur on a public works project is the construction necessary to ensure that the existing construction site that must be shut down is left in a safe and secure manner.

Making a determination whether a public works project should move forward as an Essential Governmental Function, or be shut down and delayed involves an analysis of a variety of factors, including: workers’ compensation and other liability issues; SB 117 payment issues; OSHA obligations; monitoring employees’ health; social distancing requirements; determining the location of where Essential Services are provided; and possible contract addenda. Accordingly, we strongly recommend that districts contact legal counsel for assistance with making these determinations.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

[1] The Order can be found online at https://socoemergency.org/order-of-the-health-officer-of-the-county-of-sonoma/.

[2] See https://socoemergency.org/emergency/novel-coronavirus/coronavirus-cases/ for up to date Sonoma County coronavirus statistics.

Legal Update Memo No. 25-2020 – Sonoma County Strengthens and Extends Shelter in Place and Orders Mandatory Social Distancing Protocols (K-12)

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