On March 31, 2020, Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara counties plus the City of Berkeley issued new Shelter-in-Place orders, further restricting construction and extending Shelter-in-Place restrictions until May 3, 2020. Under the new orders, most construction, including residential and commercial, is now prohibited. Healthcare, low income housing, specially designated public works projects, shelters, and temporary housing projects may continue.

The new orders limit construction activity to the following:

1. Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure;
2. Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response;
3. Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units;
4. Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;¹
5. Shelters and temporary housing, but not including hotels or motels;
6. Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;
7. 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; and
8. 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;

Essential Infrastructure includes airports, utilities, oil refining, roads and highways, public transportation, water and wastewater, and telecommunications systems – but not public works or housing. The new orders only permit public works projects to continue if “specifically designated as an Essential Governmental Function”, and limits housing projects to affordable housing. Thus, a number of projects that were allowed under the prior orders, discussed here, may not continue under the new orders.

Further, while the prior Shelter-in-Place orders required social distancing on construction projects “to the extent possible,” under the new Shelter-in-Place orders, projects that are allowed to continue must prepare, post, and implement a social distancing protocol for each facility no later than 11:59 p.m. on April 2, 2020, using the form attached to the applicable county order. The protocol “must explain” how social distancing measures are being implemented, such as:

• Limiting the number of people such that a six-foot distance can be maintained;
• Providing handwashing stations and sanitizer;
• Posting signage informing employees not to enter if they have a cough or fever and to follow other social distancing requirements.

These local orders are more restrictive than California’s statewide Stay-at-Home order and subsequent guidance, which appear to allow all construction to continue. In fact, the new local orders explicitly provide: “Where a conflict exists between this Order and any state public health order related to the COVID-19 pandemic, the most restrictive provision controls.” It is possible that local orders prohibiting construction activities allowed by the state may be preempted to the extent that the state order intends to promote those activities. But the full intent of the state’s order is not entirely clear, and in the meantime many local jurisdictions continue enforcing their more restrictive orders. Until further guidance is issued, project owners and contractors should adhere to the more restrictive local orders and contact local officials about whether their project may continue.