As you are aware by now, on March 19, 2020, Governor Newsom issued Shelter-In-Place orders for the State of California. Yet, you may not be fully aware of what this mandate requires.

What Does the Shelter-In-Place Order (the “Order”) Mean?

The Order means that every California citizen must stay at home until the order is lifted. As such, you should not leave your home unless you work at or operate an essential business or must visit an essential business for certain necessities. If you do leave your home, social distancing should be practiced by maintaining a six-foot distance from the next person.

This also means that certain businesses must close until further notice. These businesses include dine-in restaurants, bars and nightclubs, entertainment venues, gyms and fitness studios, convention centers, public events, and hair and nail salons. State parks, beaches, and parking lots are also closed. While the Order is subject to change, counties across the State may also issue more strict requirements. For instance, some counties are expanding on the state mandate to require residents to wear a face-mask over one's face and mouth at all times when outside of the home or face steep civil penalties.

Why Did the Governor Issue this Order?

The Order is California’s attempt to level the curve of the mortality and morbidity rate of COVID-19 within the State. In doing so, the Order seeks to reduce the risk of the population becoming sick at the same time, which would create additional immense pressure on California’s already strained healthcare system.

What is Considered an Essential Business?

There are exceptions to this Order which include: gas stations, pharmacies and marijuana dispensaries, grocery stores, banks, laundromats, farmer markets, food banks, convenience stores, and restaurants for takeout and delivery only. Also exempt are critical government services, such as law enforcement, schools, childcare, construction, wireless providers, and postal workers. Those who work at these businesses are considered “essential employees” and may leave their homes for work.

What Happens if You Violate the Order?

Governor Newsom has extensive power during a public health crisis such as this, including the ability to commandeer private property and personnel. If you or your business violate the Order, you can be charged with a misdemeanor offense that could result in fines and/or jail time. Additional penalties may also vary by county.

If you are operating your business during this pandemic in violation of the Order, you should also be concerned with the potential civil liability. There is the potential for businesses who violate the Order to be sued under the theories of Negligence Per Se or Negligence if a person is infected at that location.

Under the theory of Negligence Per Se (“automatic negligence”), you will be found to be negligent (failing to take the proper care a normally cautious person would have taken in that situation) when a person proves the following 4 factors: 

1. that the Order set a standard of conduct for businesses to abide by; 

2. that your business violated that Order by failing to follow the standard of care; 

3. that the person harmed is a member of the public the Order seeks to protect; and

4. that your actions in operating the business in violation of the Order caused that person’s harm. 

For example, say a beauty salon, which is considered a non-essential business under the Order, continued to operate in violation of the Order and a customer became infected while visiting that business. That customer may be able to bring a Negligence Per Se claim against the business as a result. By breaking the law, that business owner is subjecting himself/herself to civil liability. 

Additionally, since the Order sets specific guidelines to govern behavior by establishing that all non-essential businesses should close, businesses that continue to operate are extremely likely to be found liable under Negligence Per Se. If all these elements are proven, your business could be found liable and be held responsible for that person’s damages.

However, a person can also bring a claim of Negligence against your business if you are operating in violation of the Order. In that case, the jury would weigh all the facts of the case to determine if your business failed to meet the required standard of care – i.e. ceasing all operations as a non-essential business – which resulted in the individual’s injuries. 

While you may be able to raise the defense of “assumption of the risk” (the person knew of the risks and agreed to accept the risks), there is no guarantee that your business would escape responsibility for the person’s damages, especially when sued under Negligence Per Se. 

County Extensions of Shelter-In-Place Order 

As mentioned above, counties across California are permitted to add more restrictive measures in addition to the restrictions imposed by Governor Newsom’s Shelter-In-Place Order. As a result, it is important for you to be aware of the restrictions in place within your respective county. Failure to comply with these requirements can result in possible misdemeanor charges and hefty fines.

Best Practices for Essential Businesses

Essential businesses should employ best practices to limit the potential liability for a Negligence Per Se or Negligence case being brought against them. The U.S. Centers for Disease Control and Prevention (CDC) and the California Division of Occupational Safety and Health (Cal/OSHA) have developed guidelines to assist essential businesses during this time. These include:

• Encourage sick employees to stay home

• Send identifiably sick employees home immediately

• Encourage and educate employees on proper hygiene etiquette, such as washing hands with soap and water for at least 20 seconds, using hand sanitizer, covering coughs or sneezes into the sleeve or elbow, and regularly disinfecting surfaces - especially high-trafficked areas

Additionally, employers should ensure that consumers and employees maintain "social-distancing" requirements of at least six feet from other individuals. This may include limiting and/or controlling the amount of individuals in the business at any one time. Employers should also restrict gatherings of more than 10 people at any time for both employees and consumers. 

Overview

The Order, as well as county guidelines, should be taken seriously by you and your business. Doing so will protect both you and your business from potential criminal and civil liability. If you have additional concerns relating to ceasing operations on your business, please contact an experienced attorney at the Law Office of George R. Bravo for guidance and assistance. 

DISCLAIMER: The contents of the Law Office of George R. Bravo article represent the opinions of the authors and should not be considered legal advice. Due to the generality of this article, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Neither this article nor any legal analysis, legislative updates, or other content derived from it should be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of this article. The choice of a lawyer or other professional is an important decision and should not be based solely upon this article. Nothing in the article should be construed as a promise or guarantee about the outcome of any matter.