On May 18, 2020, Governor Baker and his administration unveiled the findings of the Reopening Advisory Board and the details of the Massachusetts Reopening Plan (the Plan).  The Plan contains four phases, each of which will last a minimum of three weeks and possibly longer depending on where the public health data stands at each point.  Each phase focuses on different sectors and industries, with the goal being that by Phase 4, the Commonwealth will establish a “New Normal,” with a full resumption of activity.

In addition to the Reopening Advisory Board’s Report, the administration has released Social Guidance, Mandatory Workplace Safety Standards, and various Sector-Specific Protocols and Best Practices.  Regardless of which phase a business finds itself in, that business must demonstrate compliance with all three before reopening.  Businesses that perform essential services, however, will have until May 25, 2020 to demonstrate compliance.  All of these materials may be found here on the Commonwealth’s website.

 

OVERVIEW OF STANDARDS

The administration’s Social Guidance asks that all Commonwealth residents cover their faces, wash their hands, socially distance, be vigilant for symptoms and stay home if they feel sick.  The Mandatory Workplace Standards are more specific and necessitate that businesses satisfy the following requirements:

  • All persons, including employees, customers and vendors should remain at least six feet apart, to the greatest extent possible;
  • Establish protocols to ensure employees can adequately social distance;
  • Provide signage for safe social distancing;
  • Require face coverings or masks for all employees;
  • Provide hand washing capabilities throughout the workplace;
  • Ensure frequent handwashing and adequate supplies;
  • Regularly sanitize high-touch areas, such as workstations, equipment, screens, doorknobs and restrooms in the workplace;
  • Provide training for employees regarding the social distancing and hygiene protocols outlined above;
  • Employees displaying COVID-19-like symptoms may not report to work;
  • Establish a plan for employees getting ill from COVID-19 at work, along with a return-to-work plan;
  • Establish and maintain cleaning protocols specific to the business;
  • Perform cleaning and disinfecting when an active employee is diagnosed with COVID-19; and
  • Disinfect all common surfaces at intervals appropriate to the workplace.

Businesses will be provided with educational materials that define how an employer should prepare their workspace for reopening and what products are appropriate for employees to protect themselves while at work.  The administration set up a portal to connect businesses in need of protective supplies and materials with manufacturers that are actively producing them.

Industry-Specific Protocols and Best Practices are only for businesses within Phase 1 (discussed below).  These protocols are broken down into a “Sector Circular” and a “Sector Checklist.” The former lays out the mandatory safety standards and best practices, while the latter serves as short-form guidance for businesses of all sizes as they adjust operations to fit the mandatory standards.  Protocols and best practices for businesses in other phases will be released before each phase’s onset.

Businesses awaiting their respective Industry-Specific Protocols and Best Practices, however, should take steps to ensure compliance with the Workplace Safety Standards outlined above.  We do not recommend that businesses attempt to base compliance on existing, inapplicable industry-specific protocols, as each sector is expected to have different requirements.

 

HOW TO REOPEN

Each business must self-certify compliance to the Commonwealth by developing a written COVID-19 Control Plan outlining how it will prevent the spread of COVID-19 in the workplace.  Businesses will also have to sign a poster, attesting to completion of the Control Plan, which must then be posted in an area where it will be visible to both employees and customers.  Finally, businesses are required to post signs and posters around the workplace displaying hygiene protocols and rules for social distancing, cleaning and disinfecting.  All three of these requirements must be fulfilled before opening.  In meeting these requirements, businesses are encouraged to make use of the Reopening Advisory Board’s sample materials, including a Control Plan Template, which are available here.

 

THE PHASES

Phase 1: Start

Phase 1 will occur across three waves.  As of May 18, 2020, manufacturing facilities, construction, places of worship, and hospitals and community health facilities (beyond those emergency services already permitted) that can attest to providing high quality preventative care, pediatric care and treatment for high risk patients may reopen.  On May 25, 2020, these businesses are permitted to open physical locations:

  • labs and life science facilities;
  • hair salons and barbershops (by appointment only);
  • office spaces outside of Boston, provided they are restricted to 25% or less of the workforce;
  • pet-grooming (by appointment only);
  • exterior car washes; and
  • retail businesses with remote fulfillment and curbside service; and other health care providers that can make the attestation described above.

Additionally, certain recreational areas, including beaches, parks, drive-in theatres, outdoor gardens, zoos and reserves, and outdoor adventure activities may resume on May 25, 2020, under guidelines that have yet to be released.  Offices within Boston may open on June 1, 2020, provided they are restricted to 25% or less of the workforce.

As part of Phase 1, Governor Baker’s administration issued a new “Safer At Home Advisory,” which replaces the “Stay At Home Advisory” previously in effect.  Under the new advisory, individuals are encouraged to stay home unless heading to one of the facilities or businesses newly permitted to open.  Individuals who are age 65 or older or have certain underlying health conditions and are at high risk for COVID-19, are encouraged to continue to stay home. Gatherings of more than ten people are still prohibited.

Businesses are strongly encouraged to continue permitting their employees to work remotely, if possible.

Phase 2: Cautious

Though there is no date set for the expected beginning of Phase 2, the businesses projected to reopen include:

  • retail (in full);
  • restaurants;
  • lodging; and
  • additional personal services (such as nail salons and day spas).

Businesses in the restaurant and lodging sectors must follow the industry-specific protocols and guidance established by a Restaurant & Hospitality workgroup, convened on May 15.  Updated or changed guidance for businesses in this phase is anticipated to be available by the time they are permitted to reopen.  In the meantime, each business should ensure compliance with the Mandatory Workplace Standards outlined above.

Phase 3: Vigilant

As with Phase 2, there is no set date for the beginning of Phase 3.  Phase 3 businesses include:

  • bars, arts & entertainment (e.g., casinos, fitness centers, gyms, museums); and
  • other such business activities aside from nightclubs and large venues. The latter two activities may not resume until Phase 4.

Phase 4: New Normal

Phase 4 features a full resumption of business activity and outdoor recreation, with guidance to be determined and provided at a later date.

It is essential for employers and business owners to not only ensure compliance with currently available and applicable workplace standards but also to continue to stay abreast of new developments.  As the Report makes clear, the timeline and details for each phase are subject to change pending the results of public health data trends.  These changes could prevent progress to the next phase or require reversion to a previous phase.  Further, note that reopening is not mandatory. For those businesses that decide to reopen their physical locations, the Report recommends staggering employee/shift start times, encouraging employees to continue working remotely if possible, and finding ways to reduce congestion at workplace entry points, so as to facilitate less physical interaction and help prevent any further spread of COVID-19.


 

CONTACT

If you have questions about employment issues that arise as you reopen or continue business operations, or any other employment-related matter that might affect your business or employment, please contact a member of our Employment Law Practice.

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