If I were an employer, how would I protect the interests of my company under the current executive orders in California?
My name is Jared Clemence. I am a law student at Kern County College of Law. I am also a full-time REALTOR, and today I ask the question, what happens if we ignore the government order?
Disclaimer: I am not a lawyer. This is not legal advice. This information is provided to summarize my thoughts and findings, and you should consult an attorney regarding your personal situation.
Starting with the Governor’s Text
When researching a legal issue regarding a statute or executive order, the best place to start is with the words of the order.
In this case, we can head straight to the governor’s order issued on March 19. The orders are published on his website and can be googled easily.
The first thing I want to know is what exactly is he ordering?
What are the governor’s actual orders?
The governor confused matters by including a copy of Sonia Y. Angell’s previous order. Sonia Y. Angell is State Public Health Officer and Director of the California Department of Public Health. On March 19, she issued her own order in which she orders “all individuals living in the State of California to stay home . . .”
If the order to stay home is Sonia Angell’s, then what order did the governor give in his Executive Order? There are four:
- Citizens must heed the words of Sonia Y. Angell.
- Healthcare providers must “prioritize services . . . to those who are the sickest. . .”
- The Office of Emergency Services must “take necessary steps to ensure compliance with this Order.” And,
- Finally, he dictates that this order will be “enforceable pursuant to California law.”
If we boil it down, there really are only three orders, and only one that applies to the average citizen. To the average citizen, the governor orders us to “read” (and give special attention to) the Order of the State Public Health Officer. The other orders only apply to specific industries.
What does it mean to “heed” the order of the State Public Health Officer?
Item number one of the executive order includes the following text: “all residents are directed to immediately heed the current State public health directive. . .”
But, what does this mean exactly?
Dictionary.com defines “heed” to mean “to give careful attention to.” If this is all the government is ordering, then the situation is simple. Advise all employees to read the public health directive that asks people to remain indoors and engage in social distancing. As soon as they have done that, they have “heeded” the order by giving it careful attention for a few minutes, and after that they can go about your day, and you have complied with the government order.
What do I put at risk?
If I personally violate the executive order, what do I put at risk?
Government Code section 8665 states: “Any person who violates any of the provisions of this chapter or who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both such fine and imprisonment.” (Gov. Code, § 8665.)
What this means is that mistakes are criminally punishable. We risk $1,000 fines and we risk up to 6-months imprisonment.
What would I tell my employees?
If I ran a company, first I would check with my attorney to see if the above is a reasonable interpretation of the governor’s order. If he confirmed that, then I would issue a company-wide memo to all employees and contractors to ask them to read the words of Sonia Y. Angell.
The best thing I could do for my employees is making sure that they stay well informed and that they have read the governor’s words and also the words of Sonia Y. Angell. I think it important also to ensure that they understand the difference between whose words are whose.
With respect to whether I would risk continuing my business after taking heed. I think I would.
We face a global pandemic. It is essential that we act cautiously so that we do not harm others by our own careless acts. Encourage safe practices, social distancing, and tip-top hygiene, but I’d personally try to continue my business taking necessary precautions to avoid unnecessary contact.
As a real estate agent, this would mean:
- Keeping a distance of 6 feet from sellers and buyers.
- Providing 3D tours.
- Only listing houses “subject to interior inspection.” And,
- Creating a disclosure and a contract modification that handles key terms during this unnual period.
What are your thoughts? Share them in the comments below.
Above, I determine that all the governor has asked us to do is to give special attention to an order by the State Public Health Officer. This does not require us to follow the State Public Health Officer’s order. Next, I will ask whether we can lawfully ignore the order of the State Public Health Officer.