On October 17, 2022, Governor Newsom announced that he intended to end the State’s COVID-19-related State of Emergency, effective February 28, 2023. This bulletin addresses the forthcoming legal changes and how local governments should prepare for the end of the State of Emergency.
A future bulletin will address changes in the law related to the end of the federal emergency declaration, which will occur on May 11, 2023.
Restoration of Requirements Related to Maintaining a Local State of Emergency
For many local governments, the most significant change associated with the end of the State of Emergency will likely be the restoration of the statutory renewal requirements for certain local emergencies, which the Governor’s Proclamation of a State of Emergency (“Proclamation”) suspended.[1]
Local health emergencies and local emergencies both allow a local government to receive mutual aid from the State or other local governments.[2] When a local governing body declares a local emergency, it may also seek funding[3] under the California Disaster Assistance Act (“CDAA”), subject to the Governor’s approval.[4] Furthermore, the local governing body has the power to “promulgate orders and regulations necessary to provide for the protection of life and property.”[5] Similarly, during a local health emergency, the local health officer has expanded powers to respond to the public health threat and secure medical treatment for affected members of the public.[6]
While the Health and Safety Code and Government Code authorize local governments to declare emergencies, both Codes require that the responsible local governing body periodically renew the emergency if it is not able to resolve the emergency within the period prescribed by law.
Because the Proclamation suspended the statutory renewal requirements for COVID-19-related emergencies, many local governments that declared emergencies early in the pandemic have not reviewed local conditions or renewed such emergencies. If conditions support extending such emergencies, local governments must follow the requirements outlined below:
Requirements Specific to Reauthorizing Local Health Emergencies
Under the Health and Safety Code, a local health officer may declare a local health emergency in the event that a communicable disease poses an imminent threat to the public.[7] However, the local health emergency will expire seven days after the initial declaration unless the local agency’s governing body (i.e., board of supervisors or city council) reviews the local conditions and ratifies the local health officer’s declaration.[8]
Ratification of the local health emergency declaration by the governing body will extend the local health emergency for 30 days. In order to extend the local health emergency further, the governing body must review the local health conditions to determine whether the communicable disease poses an imminent threat to the public and ratify the declaration every 30 days thereafter.[9]
Requirements Specific to Reauthorizing Local Emergencies
Under the Government Code, the governing body of a local government or its designee may declare a local emergency where conditions threaten life, property, public order, or public safety.[10] As with a local health emergency, the local emergency will expire after seven days unless the governing body reviews local conditions and ratifies the declaration extending the state of emergency.
Ratification of the local emergency declaration will extend the state of local emergency for 60 days. In order to extend the state of local emergency beyond that period, the governing body or its designee must review local conditions and ratify any extension of the state of emergency every 60 days thereafter.[11]
Once the statewide State of Emergency ends, an agency that declared a local emergency related to COVID-19 must review local conditions to determine whether the conditions warrant the extension of the emergency and take action accordingly. Local governments or health officers may need to declare local emergencies where their community experiences a spike in COVID-19 cases that threatens public health or safety, for example. Local governments that know the requirements ahead of time will be better prepared to respond to local emergencies.
California Disaster Assistance Act Funding Will Expire
When the State of Emergency ends, State funding for local governments under the CDAA[12] will diminish. The CDAA authorizes the Director of the California Governor’s Office of Emergency Services (“Cal OES”) to administer financial assistance to local governments in certain emergency circumstances, including: (1) when a local government declares an emergency and requests state assistance from the state the Director; (2) when a local government incurs costs as a result of undertaking activities in response to a State of Emergency proclaimed by the Governor; or (3) when a local government incurs costs as a result of undertaking activities in response to a Presidential Emergency Declaration.[13]
While local governments that receive funding under the CDAA may continue to receive such funds as a result of renewed local emergencies, the end of the State of Emergency (and forthcoming end to the Presidential Emergency Declaration) will likely reduce the funding made available under the CDAA. Local governments should review the terms and conditions of their funding under the CDAA and contact Cal OES to understand if or how the end of the State of Emergency will affect current funding.
The End of Remaining COVID-19-Related Executive Orders Related to Will Have a Negligible Effect on Local Governments
The end of the State of Emergency will also end any remaining executive orders related to COVID-19 that were issued under the State of Emergency. However, this rescission will have a negligible effect on local governments since the few remaining orders relate to the functioning and operation of State agencies, not local governments.
Many Legal Obligations Related to COVID-19 Will Continue to Apply to Local Governments
While the end of the State of Emergency will result in certain changes for local governments, other existing legal obligations imposed on, or authority provided to, local governments will remain unchanged.
Public Health Guidance and Work-Related Requirements
The California Department of Public Health (“CDPH”) will continue to maintain jurisdiction and authority over public health issues of statewide concern, including COVID-19, and will continue to provide guidance on issues, such as isolation and quarantine requirements. Local governments should note that the Department of Industrial Relations (“DIR”) may interpret CDPH guidance that applies to the general public and provide guidance that is specific to employers on these subjects. As a result, it will continue to be prudent for local governments to consult both CDPH and DIR guidance concerning how to respond to health-related workplace issues.
COVID-19-Related Workplace Health and Safety Obligations
Relatedly, the Occupational Safety and Health Standards Board (“OSHSB”) has promulgated Permanent Standards concerning COVID-19-related workplace health and safety requirements.[14] The Permanent Standards became effective on February 3, 2023 and replaced the Emergency Temporary Standard (“ETS”) that the OSHSB initially promulgated in November 2020. The Permanent Standards will remain in effect for two years. Local governments should modify workplace policies and practices according to the Permanent Standards, including but not limited to their Injury and Illness Prevention Programs (“IIPP”) or COVID-19 Prevention Programs (“CPP”).
Notice Regarding Workplace Exposures
In addition to the COVID-19-related workplace exposure notice requirements provided for under the ETS and Permanent Standards, Labor Code section 6409.6 requires local governments to provide notice to employees, independent contractors, and employee representatives in the event of such exposures. Local governments should continue to discharge their obligations to provide such notice in the event of a workplace exposure following the end of the State of Emergency. Employers should also note that and AB 2693[15] amended certain aspects of Section 6409.6 so that, as of January 1, 2023, employers may satisfy the notice requirement by posting the notice prominently at the worksite. Employers may still provide notice directly to employees, but they are no longer required to do so.
Other statutory changes undertaken during the State of Emergency authorize local governments to hold remote meetings without strict adherence to requirements under the Brown Act.
Assembly Bill (“AB”) 361 modified the Brown Act to allow local governments to hold public meetings remotely if the governing body satisfies certain statutory requirements under the Government Code.[16] However, the exception to the Brown Act created by AB 361 only applies during a State of Emergency proclaimed by the Governor.[17] As a result, local governments will not be able to conduct remote meetings pursuant to this authority after the expiration of the State of Emergency.
However, AB 2449, which also amended the Brown Act, allows local governments to hold public meetings remotely if at least a quorum of the members of the governing body participates in person from a single location.[18] Members participating remotely must give notice and just cause at the earliest opportunity, or else must request and receive permission to participate remotely.[19] Even then, AB 2449 limits the number of times a member may participate remotely.[20]
While local governments have limited time to utilize the authority provided under AB 361, they may continue to hold public meetings remotely pursuant to the requirements set forth under AB 2449.[21]
Local governments that are interested in continuing to meet remotely should review their practices in order to ensure that they satisfy the applicable requirements under the Brown Act as amended.
Liebert Cassidy Whitmore attorneys continue to monitor developments in COVID-19 requirements and guidance. If you have any questions about the end of the State of Emergency or COVID-19 prevention moving forward, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.
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[1] See Paragraphs 7 and 8 of the March 4, 2020 Proclamation of a State of Emergency (“Proclamation”), which suspend the renewal requirements under Health and Safety Code section 101080 and Government Code section 8630 for local health emergencies and local emergencies, respectively. The Proclamation is available at the following web address: https://www.library.ca.gov/wp-content/uploads/GovernmentPublications/executive-order-proclamation/40-Proc-2020-03-04.pdf.
[2] Gov. Code §§ 8631-8633; Health & Safety Code § 101085, subd. (b).
[3] Gov. Code § 8685.2.
[4] Gov. Code §§ 8680, et seq.
[5] Gov. Code § 8634.
[6] Health & Safety Code §§ 101080.2-101090; Gov. Code § 8659.
[7] Health & Safety Code § 101080.
[8] Id.
[9] Id.
[10] Gov. Code §§ 8630 and 8634.
[11] Gov. Code § 8630, subds. (b)-(c).
[12] Paragraph 9 of the Proclamation.
[13] 19 C.C.R. § 2910.
[14] 8 C.C.R. §§ 3205, et seq.
[15] Assem. Bill 2693 (2021-2022 Reg. Sess.).
[16] See Gov. Code § 54953, subd. (e).
[17] Gov. Code § 54953, subd. (e)(1).
[18] Gov. Code § 54953, subd. (f).
[19] Gov. Code § 54953, subd. (f)(2)(A).
[20] Gov. Code § 54953, subds. (f)(2)(A)(i) and (f)(3).
[21] Assem. Bill 2449 (2021-2022 Reg. Sess.).