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San Francisco Bay Area Shelter-In-Place Orders Impact Construction Projects

In response to the Coronavirus Disease 2019 (COVID-19) crisis, California Gov. Newsom issued Executive Order N-33-20, referred to as the Safer at Home Order. The Safer at Home Order created shelter-in-place protocols for individuals and nonessential businesses, with exemptions for Essential Critical Infrastructure Workers in 16 critical infrastructure sectors as defined by the Department of Homeland Security and adopted by the California State Public Health Officer. The list of Essential Critical Infrastructure Workers includes workers and businesses engaged in construction projects in California.

Subsequently, nine Bay Area counties and the City of Berkeley issued additional restrictions on construction projects and further limited the scope of projects that may continue. Although there was initial confusion regarding these conflicting restrictions, Gov. Newsom has since confirmed that California will maintain the Safer at Home Order restrictions, but that county and municipal orders such as the Bay Area restrictions may be lawfully enforced at the local level.

The local orders discussed below may remain in place through at least the end of April. Exact deadlines vary by locale, and local orders and guidance are accessible through the various county and municipality websites. This GT Alert provides a brief outline of the orders issued by these counties and municipalities, including key provisions for projects that are allowed to continue under the orders.

Bay Area County Restrictions for San Francisco, Contra Costa, Alameda, San Mateo, Santa Clara, Marin, and the City of Berkeley

While the exact restrictions vary from county to county throughout the state, the local orders for these six central Bay Area counties (and the City of Berkeley) include practically identical restrictions on which projects may go forward. Under these orders, construction projects are no longer exempt unless the project falls within one of the following categories:

  • Residential construction that includes income-restricted affordable housing (multi-family and mixed-use projects must include a minimum of 10% affordable housing units);
  • Other temporary housing and similar shelter projects other than hotels or motels;
  • Construction projects to provide critical noncommercial services that are imminently necessary for individuals who are homeless, economically disadvantaged, have special needs, or are elderly;
  • Healthcare Operations construction projects responding to the COVID-19 crisis, including projects for maintenance, repair, expansion, or development of such responsive operations;
  • Construction of public works that are designated Essential Governmental Function projects by relevant local authorities;
  • All other Essential Infrastructure construction projects, so long as the work is imminently necessary for the maintenance, operation, or repair of said Essential Infrastructure;
  • Minimum necessary work to maintain habitability of residences and sanitation and safety of buildings containing Essential Businesses; and
  • Necessary work to safely and securely shut down existing projects not otherwise exempted.

For the purposes of the above categories of projects, “Healthcare Operations” generally includes hospitals, clinics, COVID-19 testing locations, dentists, pharmacies, blood banks and blood drives, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare supplies, home healthcare services providers, mental health providers, or any related and/or ancillary healthcare services.

Additionally, “Essential Infrastructure” generally includes airports, utilities (including water, sewer, gas, and electrical), oil refining, roads and highways, public transportation, solid waste facilities (including collection, removal, disposal, and processing facilities), cemeteries, mortuaries, crematoriums, and telecommunications systems (including the provision of essential global, national, and local infrastructure for internet, computing services, business infrastructure, communications, and web-based services).

Each local authority is permitted to interpret their restrictions independently so long as they are not less strict than those established by the California Safer at Home Order. Additionally, as discussed below, exempted construction must comply with any additional local rules and restrictions established to ensure workplace safety in response to COVID-19.

Napa, Sonoma, and Solano County Restrictions

Napa, Sonoma, and Solano counties have also issued orders separate from the California Safer at Home Order. Solano is similar to the Safer at Home Order, with little practical variation except that it allows local enforcement. Napa County provides greater restrictions that are more consistent with the Core Bay Area County restrictions. However, Napa broadly exempts all residential housing construction other than hotels/motels and does not require those construction projects to include affordable housing. Finally, Sonoma County is similar to the Core Bay Area County restrictions. The only substantive variation is that Sonoma exempts construction and debris removal for properties damaged or destroyed by fire.

Local Work Safety Requirements

Even if a construction project remains exempt and is permitted to continue under these local orders, each local authority has authority to issue safety requirements to provide for the health and safety of project workers. These vary by locale, but generally require compliance with each county or municipality’s COVID-19 Construction Field Safety Guidelines in addition to compliance with any other site-specific health and safety plans. This also includes requirements for social distancing protocols. Pursuant to Gov. Newsom’s public statements on April 2, 2020, local orders and safety protocols are presumptively valid during the pendency of the COVID-19 response, and compliance is mandatory. Any violations are potentially subject to fines and other administrative measures, including the suspension of further work.

Following are links to the Orders:

  1. San Francisco City and County Order
  2. Contra Costa County Order
  3. Alameda County Order
  4. San Mateo Order
  5. Santa Clara Order
  6. Marin County Order
  7. City of Berkeley Order
  8. Solano County Order
  9. Napa County Order
  10. Sonoma County Order

For more information and updates on the developing COVID-19 situation, visit GT’s Health Emergency Preparedness Task Force: Coronavirus Disease 2019.