California Announces New Four-Tier System for Business Reopening

September 01, 2020

California Governor Newsom announced the “blueprint for a safer economy,” a gradual process for reopening businesses in California, on August 28. A replacement for the County Monitoring List, the blueprint is a four-tier, color-coded system for business reopening based on each county’s specific coronavirus (COVID-19) case rates and percentage of positive tests.

Under the blueprint for a safer economy, every county in California is assigned to a tier based on its new case and COVID-19 test positivity rates. At a minimum, counties must remain in a tier for at least three weeks before moving forward with reopening processes.

The California Department of Public Health will review data weekly. The state will update tiers on Tuesdays, beginning September 8. To move forward, a county must meet the next tier’s criteria for two consecutive weeks. If a county’s metrics worsen for two consecutive weeks, the state will assign it to a more restrictive tier.

A county may issue its own guidelines that are more stringent than the state’s blueprint. If a county’s order/guidelines are more stringent, then they control.

Four Tiers

  • Purple Tier – “Widespread”: A county will be in the Purple Tier if it has seven or more new cases per 100,000 members of its population. All counties that were on the state’s County Monitoring List as of August 28 are currently in the Purple Tier.
  • Red Tier –“Substantial”: A county will be in the Red Tier if it has four to seven new cases per 100,000 members of its population and if its positivity rates are between 5% and 8%.
  • Orange Tier – “Moderate”: A county will be in the Orange Tier if it has fewer than four new cases per 100,000 members of its population and if its positivity rate is between 2% and 4.9%.
  • Yellow Tier – “Minimal”: A county will be in the Yellow Tier if it has less than one new case per 100,000 members of its population and if less than 2% of people in the county are testing positive for COVID-19.

Permissible Activities/Businesses Per Tier

The tier system allows businesses that have a lower risk of spreading COVID-19 to open even when the county is in the Purple or Red Tier. By contrast, higher-risk businesses are not allowed to open until the county moves to the Orange or Yellow Tier.

Whether a business is considered to be high-risk depends on whether the business can meet the following factors:

  • Ensure face coverings are worn at all times (for example, eating and drinking in restaurants requires temporarily removing face coverings, which increases risk)
  • Provide physical distance between individuals from different households
  • Limit the number of people per square foot
  • Limit time that an individual is at the business or activity
  • Limit time of exposure
  • Limit mixing of people from different households
  • Limit amount of physical interactions of visitors/patrons
  • Increase airflow (such as operating outdoors or opening windows and doors)
  • Limit activities that increase virus spread (like singing, shouting, and heavy breathing)

Under the blueprint, certain businesses the state ordered to close on July 13 were allowed to reopen statewide regardless of the county tier on August 31. These include hair salons and barbershops, retail, and shopping centers (at a maximum capacity of 25%).

The state’s blueprint for a safer economy website also lists the current tier of each county.

Implications for Employers

While the new tier system is a departure from the previous watch list, it is not a drastic change for most businesses. As with the state’s prior updates, businesses should check regularly the state’s website as well as the updates and protocols for county and local jurisdictions in which businesses operate. For example, while many counties allowed shopping centers and hair salons to reopen on August 31, Los Angeles County requires that those types of businesses remain closed for indoor operations.

Return to Work Resources

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Kathryn T. McGuigan

Orange County
Carrie A. Gonell
Daryl S. Landy