On Friday, August 28, 2020, Governor Newsom unveiled the state’s new tiered system for identifying and reducing COVID-19 infection risks in each county. This new “blueprint” is aimed at reducing instances of COVID-19 by imposing revised criteria for both easing and tightening restrictions on the activities of California residents and businesses.

Under the new system, which goes into effect on Monday, August 31st and replaces the “County Monitoring List” approach, each county is assigned to one of four tiers – Minimal, Moderate, Substantial, or Widespread. These tiers are assigned based on the percentage of new daily cases and the percentages of positive tests.

  • Minimal (Tier 4)
  • Moderate (Tier 3)
  • Substantial (Tier 2)
  • Widespread (Tier 1)

Initial tier assignments were established on Friday, August 28th.  Each county must clear the following hurdles to move to move to the next (less restrictive) tier:

  1. First, and with limited exceptions for certain counties initially designated as “Widespread,” each county must remain at each tier level for at least three weeks.
  2. Second, new case and test positivity rates must decline (to the levels at the next lower tier) for at least two consecutive weeks.
  3. Third, each county must meet the state’s established health equity measures on certain activities (e.g., data collection, testing access, contact tracing, supportive isolation, and outreach) which are aimed at demonstrating their ability as a county to address the most impacted communities.

For example, Alameda County has been initially designated as “Widespread” based on its new case and positivity rates and will remain there for at least three weeks.  If, during that time, and for at least two consecutive weeks, the percentage of new cases and positive tests goes down to “Substantial” levels, Alameda County’s status will change to “Substantial” at the end of the three-week (21 day) period, provided it satisfies the health equity measures.

So what does it actually mean to be at a given tier?  Basically, activities and businesses that have a lower risk of spreading COVID-19 are subject to less restriction; those that entail a higher risk of spreading COVID-19 remain subject to restriction until the county reaches tiers 3-4 (“Moderate” and “Minimal,” respectively). The later and less restrictive tiers are also going to be less restrictive as far as the capacity at which establishments will be permitted to operate.

For example, some indoor businesses such as hair salons and indoor shopping malls may be cleared to re-open (with modifications) state-wide as of Monday, August 31st, but the permitted capacity at these establishments will depend on the county’s assigned tier.  As another example, Los Angeles County, which is designated as “Widespread,” cannot yet open indoor gyms, whereas gyms in Calaveras County may re-open with modifications and at reduced capacity.

More information on this new system is available on California’s COVID-19 website.  We anticipate that counties and cities throughout California will update their public health orders in the coming days to reflect this new system.  For example, Sacramento County updated its Public Health Order on August 31st.

Employers should familiarize themselves with this new system and check for updated public health orders for the jurisdictions in which they operate.

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Photo of Mark Kemple Mark Kemple

Mark D. Kemple is Co-Chair of the firm’s Labor & Employment Class and Collective Action practice and leads the Southern California Labor & Employment Practice. He has broad trial experience in many areas of the law, including employment class and individual litigation, consumer…

Mark D. Kemple is Co-Chair of the firm’s Labor & Employment Class and Collective Action practice and leads the Southern California Labor & Employment Practice. He has broad trial experience in many areas of the law, including employment class and individual litigation, consumer class litigation, false advertising, and unfair competition, where he focuses on the defense of wage/hour class actions and individual employment claims. Mark has handled disputes for companies of all sizes, and has tried numerous lawsuits and arbitrations throughout the United States. He has argued appeals in three federal circuits and several state courts of appeal, including in the California Supreme Court.

Photo of Ellen M. Bandel Ellen M. Bandel

Ellen M. Bandel is an associate in the Labor and Employment practice, advising unionized and union-free employers on all aspects of labor and employment law. Specifically, Ellen counsels employers on a range of workplace issues including recruitment; development of handbooks and employment policies…

Ellen M. Bandel is an associate in the Labor and Employment practice, advising unionized and union-free employers on all aspects of labor and employment law. Specifically, Ellen counsels employers on a range of workplace issues including recruitment; development of handbooks and employment policies; employee performance and discipline; administering paid and unpaid time off policies and leaves of absence; compliance with wage and hour and disability accommodation laws; proper handling of employee complaints; workplace audits and investigations; workforce reductions; and mitigating risk associated with employee terminations. Ellen has wide-ranging experience advising employers on compliance with employment legislation “trending” at the state and local level, including paid sick leave laws, legalization of medical and recreational marijuana, pre-employment restrictions relating to use of criminal history or prior salary information, predictable work schedule requirements, and paid medical leaves.

Ellen also represents clients in federal, state, and local administrative proceedings. Additionally, she assists government contractors subject to requirements of the Office of Federal Contract Compliance Programs’ (OFCCP) with the design and implementation of affirmative action programs and navigating the compliance review process.