Governor Newsom and the California Department of Public Health Announce New Framework for Reopening

On August 28, 2020, Governor Gavin Newsom announced a new risk-based framework by which the California Department of Public Health (“CDPH”) will determine what activities are permitted in counties throughout the state (“Blueprint for a Safer Economy”). While most governmental operations are considered “critical infrastructure” and have been permitted to remain open with certain modifications, public employers should nevertheless familiarize themselves with this new framework for assessing relative risk and reopening non-essential businesses and operations.

The Statewide Blueprint

The statewide Blueprint, which took effect August 31, 2020, provides a color-coded four (4) tiered framework for evaluating the relative risk of community transmission of SARS-CoV-2, the virus that causes COVID-19, in California counties. CDPH will assess such risk based on two (2) metrics: (1) the local case rate (i.e., new cases per 100,000 in population); and (2) test positivity rate (percentage of tested who test positive for COVID-19).

Based on these metrics, the state will assign each county to one of the four tiers, which in conjunction with supplementary sector-specific information, will indicate what activities are permissible in each county and how business in that county may operate, if at all.

The Blueprint replaces the state’s County Data Monitoring List, which provided different rules for each of the State’s 58 counties, with a single uniform approach that applies to counties across the state.

CDPH Guidance Concerning Operation of the Blueprint

In conjunction with the Governor’s announcement, CDPH issued interpretive guidance which describes the specific operation of the Blueprint (the “Plan for Reducing COVID-19 and Adjusting Permitted Sector Activities to Keep Californians Healthy and Safe”).

General Rules

CDPH’s Plan provides the following general rules concerning the operation of the Blueprint and the movement of counties between tiers:

1. CDPH will assess indicators weekly, and will provide updates every Tuesday starting on September 8, 2020 concerning its weekly assessments.
2. A county will remain in a tier for a minimum of three (3) weeks before advancing to the next tier.
3. A county may only move forward one tier at a time.
4. If a county’s case rate and test positivity measure fall into two (2) different tiers, the county will be assigned to the more restrictive tier.
5. City local health jurisdiction (LHJ) data will be incorporated into county metrics, and such cities will be assigned to the same tier as the county where the city is located.

Initial Tier Assignment

1. On August 28, 2020, CDPH assigned each county to a tier based on the metrics described above from the prior two reporting periods.
2. These tier statuses are now effective August 31, 2020.

Progressing to a Less Restrictive Tier

1. In order for a county to advance to the next tier, the county must have been in the current tier for a minimum of three weeks.
2. In order for a county to advance to the next tier, the county must meet criteria for the next tier for both metrics for the prior two consecutive weeks.
3. Additionally, the state will establish health equity measures that demonstrate a county’s ability to address the specific communities that are the most adversely impacted by COVID-19, including data collection, testing access, contact tracing, supportive isolation, and outreach. The state will also develop and track additional measures for addressing health outcomes in these communities, such as case rates, hospitalizations and deaths.

Regressing to a More Restrictive Tier

1. If the metrics for two consecutive weekly reporting periods indicate that a county’s case rate and test positivity rate fall in a more restrictive tier, the county must revert to the more restrictive tier.
2. At any time, state and county public health officials may determine targeted interventions or county-wide modifications that are necessary in order for a county to address impacted hospital capacity as well as the factors that are causing community transmission of SARS-CoV-2.
3. Unless circumstances require more immediate action, a county that regresses to a more restrictive tier will have three (3) days to implement any sector changes or closures.

Sector Specific Information Pertinent to Local Governments

The supplementary sector-specific information provided by CDPH describes 18 different “sectors” and the activities and business operations that are permissible according to the risk tier assigned by CDPH to the county in which the sector is located.

Most governmental operations are considered “critical infrastructure” (See Executive Order N-33-20 and State Public Health Officer Designation of “Essential Critical Infrastructure Workers”) and such operations are permitted to remain open with certain modifications.

Where governmental operations are not considered “critical infrastructure”, the permissibility of continued operation will depend on the risk tier assigned by CDPH to the county and the sector at issue. For the most part, the distinction between essential and non-essential government operations will implicate the “office” sector. According to CDPH, a non-essential government office must operate remotely in tiers 1 and 2 and may only return to indoor workplace operations in tiers 3 and 4. Employers should note that, even in tiers 3 and 4, CDPH still encourages teleworking where practicable.