On May 18, 2020, Massachusetts announced a four-phase reopening plan, parts of which took immediate effect. Phase 1 is the "Start" phase, during which "limited industries [may] resume operations with severe restrictions." Businesses that may reopen in Phase 1 include construction, manufacturers and places of worship on May 18; lab space, office space, and drive-in movie theaters, certain outdoor recreational facilities and activities, and categories of personal services on May 25; and office spaces in the city of Boston on June 1.
Additional industries may resume operations with restrictions and capacity limitations in Phase 2, which is titled "Cautious." The expectation is that in-person retail, restaurants, lodging and additional personal services may be reopened in Phase 2. Phase 3, titled "Vigilant," is when additional industries may resume operations with guidance. Bars, arts and entertainment (casinos, fitness, gyms, museums), and all other business activities, except for nightclubs and large venues, are expected to open in Phase 3. Phase 4 is the "New Normal" and will occur when a COVID-19 vaccine and/or therapy has been developed.
This alert summarizes the Phase 1 reopening order and related Reopening Committee report, discusses requirements for reopening businesses, and provides an overview of reopening plans in neighboring states, of which all Massachusetts businesses should be aware.
I. PHASE 1: A LIMITED REOPENING ORDER WITH THREE SUBPHASES
Phase 1 will proceed in three subphases:
- On May 18, businesses previously designated as essential in Governor Charlie Baker's prior (March 23 and 31) orders may remain open. Construction and manufacturing businesses, places of worship, and firearms retailers and shooting ranges were also allowed to reopen on May 18.
- On May 25, laboratory spaces, office space outside of Boston (at 25% capacity), limited personal services (including hair salons and barbershops, pet groomers and car washes) drive-in movie theaters, certain outdoor recreational facilities and activities (campgrounds, recreational boating facilities, for hire and charter fishing, white water rafting, zoos, botanical gardens, nature centers and outdoor wildlife reserves, and businesses providing outdoor recreational experiences and educational activities) and nonessential retail (curbside and remote fulfillment only) will be allowed to reopen.
- On June 1, office spaces in Boston will be allowed to reopen at 25% capacity.
During Phase 1, gatherings remain limited to 10 people, except for businesses allowed to reopen, which are subject to general social distancing requirements and related restrictions set forth in their safety standards. Additionally, all travelers to Massachusetts continue to be urged to self-quarantine for 14 days and lodging remains restricted to essential workers only. Massachusetts' Reopening Committee further stressed that reopening businesses are urged to allow employees to work from home whenever possible.1
Businesses that are allowed to reopen will also be required to self-certify that they have developed COVID-19 control plans to prevent the spread of the virus, and Massachusetts has issued a template for this purpose. Control plans do not need to be submitted to a state agency for approval, but they must be kept on businesses' premises and made available in case of an inspection. Customer-facing businesses must also display compliance attestation posters in areas within the premises that are visible to workers and customers. Additionally, all businesses must post on their premises state-issued notices for employers and workers describing social distancing rules, hygiene protocols, staffing and operations protocols and cleaning and disinfecting standards. Essential businesses that have been authorized to remain open have until May 25 to certify their compliance with these safety and notice provisions.2
The governor's order states that the order and any accompanying standards and guidance issued by the Department of Labor Standards and DPH are intended to create a uniform set of workplace safety rules for all businesses. Municipalities are not permitted to create their own stricter or conflicting rules.
Below is a detailed description of the requirements for all Massachusetts businesses that will be operating during Phase 1.
II. SAFETY STANDARDS
All businesses must follow mandatory safety standards in order to remain open or reopen. Additionally, the state has released required industry specific standards for businesses that elect to reopen in Phase 1.
A. Mandatory Safety Standards
Starting on May 18, all businesses reopening in Massachusetts must adhere to state-issued mandatory safety standards regarding (1) social distancing, (2) hygiene protocols, (3) staffing and operations, and (4) cleaning and disinfecting. Essential businesses that have continued operations throughout the stay-at-home order will have until May 25 to comply. Under the new protocols, businesses are required to ensure all employees wear face coverings or masks; provide training for employees regarding social distancing and hygiene policies; establish a plan for employees who become ill at work and guidelines for when they may safely return to the worksite; and establish and maintain cleaning protocols specific to the business.
These safety standards must be included in all businesses' COVID-19 control plans and are subject to self-certification.3 Key considerations related to developing a COVID-19 return-to-work plan were discussed in a previous WilmerHale client alert.
B. Industry Specific Safety Standards for Businesses Reopening in Phase 1
In addition to the mandatory safety standards applicable to all businesses, specific standards were promulgated for the categories of businesses being allowed to reopen. Sector specific protocols and best-practices are available for construction, manufacturing, office spaces, laboratories, places of worship, hair salons and barbershops, car washes, and pet grooming services. The protocols for construction, manufacturing, office spaces, and laboratories are summarized below and are also subject to self-certification.
1. Construction
Prior to restarting, construction projects must have all municipal permits in place. Additionally, the state's COVID-19 construction standards distinguish between "large complicated construction projects" and projects for one- to three-family residences.
Large projects (those that do not involve construction or remodeling in one- to three-unit residences with five or fewer workers) must notify the city or town in which the project is located of the date construction will restart and meet any city or town requirements necessary to confirm that the project satisfies all the conditions in the construction standards. They must also have site-specific COVID-19 officers who submit a written daily report to an owner's representative, certifying that they are in full compliance with the COVID-19 construction safety guidance. Cities and towns may also require large construction project owners to develop and submit a site-specific risk analysis and enhanced COVID-19 safety plans for approval by the municipal government before projects restart or begin.4 Municipal governments can also require owners to pay for independent third-party inspections.
For all construction projects, there is zero tolerance for sick workers reporting to work. Prior to each shift, employees must self-certify to their supervisor that they have not had signs of a fever or temperature above 100.3 degrees, a cough or trouble breathing in the past 24 hours, or close contact with an individual diagnosed with COVID-19 (as defined in the construction standards), or have not been asked to self-isolate or quarantine by a local public health official.
The state has also issued detailed safety guidance for construction sites, including recommendations such as conducting all meetings via conference calls if possible and, if face-to-face meetings are unavoidable, limiting them to no more than 10 people. All surfaces should be regularly cleaned, including door handles, laptops, equipment, etc. All crews should be a minimum of six feet apart at all times to eliminate the potential of cross-contamination, and workers should always socially distance, even when on breaks. Wash stations must also be installed.
2. Manufacturing
In addition to the mandatory safety standards detailed above, there are heightened safety standards devised specifically for manufacturing activities.5 For example, the standards require manufacturing facilities to "[e]nsure separation of 6 feet or more between individuals at fixed working positions unless this distance is unsafe due to the particular nature of the manufacturing work or the configuration of the workspace." Facilities must also stagger lunch and break times and install physical partitions to separate workstations in areas where they cannot be appropriately spaced. Facilities with highly manual work operations should also reopen in a gradual/phased approach, adjusting operations and work scheduling to reduce density in the facility, minimize contact among workers and prevent congestion.
To plan for the possibility of positive cases, everyone who comes in contact with the manufacturing site, including temporary visitors, must be logged to enable contact tracing. If a facility learns of a confirmed case, it must notify the local board of health, work with it to trace that person's contacts in the workplace, and advise those contacts to isolate and self-quarantine. In such a case, the site must also be shut down for a deep cleaning and disinfecting in accordance with current guidance.
3. Office Spaces
Businesses that are reopening their office space during Phase 1 (May 25 for offices outside of Boston and June 1 for Boston offices) must limit capacity to no more than 25% of (1) the maximum occupancy level specified in a certificate of occupancy or similar permit, or as provided for under the state building code; or (2) the business's or organization's typical occupancy as of March 1, 2020. Essential businesses that have continued to operate during the public health crisis have until July 1 to comply with occupancy limitations. Businesses may exceed 25% occupancy based on a demonstrated need related to public health or public safety considerations, or where strict compliance may interfere with the continued delivery of critical services.
Employers must limit on-site personnel where practicable by continuing telework, establishing staggered shifts, and reducing visitors and on-site service providers.
Employers also must develop and communicate an isolation, contact tracing and communication plan for when a worker is diagnosed with COVID-19 or comes into close contact with an individual diagnosed with COVID-19. Under this protocol, if an employer is notified of a positive case at the workplace, the employer should contact the local board of health and work with them to trace likely contacts in the workplace and advise workers to isolate and self-quarantine. To aid in contact tracing efforts, employers are required to log everyone who comes on-site, including independent contractors and temporary visitors.
Finally, if an employee or visitor tests positive for COVID-19, the office must shut down for deep cleaning and disinfecting in accordance with current CDC guidance.
4. Laboratories
The state has issued guidance for laboratories that broadly tracks the generally applicable mandatory safety standards.6 Of particular note, employees must be spaced at least six feet apart or separated by dividers and must wear face masks, consistent with the general guidelines. Laboratories should also modify staffing and operations plans to reduce employee contact and stagger work shifts. The number of visitors and service providers on-site should be limited, and employees should be restricted to designated areas. If a laboratory learns of a confirmed case, it must notify the local board of health, trace that employee's contacts and tell those contacts to self-quarantine. In such a circumstance, the laboratory must also be shut down for deep cleaning and disinfecting.
III. OTHER REGIONAL DEVELOPMENTS IMPACTING MASSACHUSETTS BUSINESSES
A number of other states in New England have already begun reopening businesses. Largely due to differences in the scope of the COVID-19 outbreak across the region, these states have generally allowed more categories of businesses to reopen, particularly in the retail and restaurant sectors, than Massachusetts has. Massachusetts businesses should understand how these orders differ from the Massachusetts order, and be aware of restrictions on Massachusetts employees traveling to and from these states.7
A. Maine
1. Reopening Plan
In Maine, Governor Janet Mills issued a plan for Restarting Maine's Economy and a related executive order that reopens the state in four stages. The plan differentiates between reopening in rural counties where community transmission of COVID-19 is not present and reopening in counties where such transmission is present. Specific businesses are allowed to reopen under each stage of the plan on the condition that they comply with general and industry-specific standards issued by the state.
Stage 1, which applies to all counties, went into effect on May 1, 2020, and allowed a limited range of businesses to reopen, including healthcare by Maine-licensed providers; limited types of outdoor recreation; drive-in theaters; barbershops/hair salons; dog grooming; limited fitness classes/instruction; limited drive-in, stay-in-your-vehicle church services; auto dealerships; and car washes. The state stressed that employees who are able to work from home should continue to do so and that professional services, such as legal services, should continue to be conducted remotely.
Under the "Rural Reopening" plan, retail businesses were allowed to reopen on May 11, 2020, with certain restrictions. Restaurants (for dine-in service and outdoor dining) were allowed to reopen on May 18, 2020.
Stage 2 of the reopening plan, which applies to all counties, is expected to begin in June, although a specific start date has not been set. Under Stage 2, it is contemplated that certain public gatherings will be allowed. Employees in legal and professional fields may also return to offices. The types of businesses that the reopening plan contemplates will reopen in Stage 2 include all retail businesses, restaurants, lodging (for Maine residents and out-of-state-residents who have completed quarantine guidelines), limited outdoor recreation (including day camps for Maine children), fitness and exercise gyms, nail technicians, and tanning salons.
Stage 3 of the reopening plan, which applies to all counties, is expected to begin in the July-August period. It contemplates the reopening of bars, expanded lodging opportunities, additional outdoor recreation (including summer camps) and additional personal services such as spas.
2. Mandatory Travel Restrictions
Governor Mills has implemented strict restrictions for travel into Maine by out-of-state residents. The governor's order requires that any person, resident or nonresident, traveling into Maine must immediately self-quarantine for 14 days. This restriction does not apply to workers traveling from Massachusetts (or elsewhere) to engage in essential services. Additionally, visitors are instructed not to travel to Maine if they are displaying COVID-19 symptoms or are residents of New York, New Jersey or Connecticut; visitors are advised not to travel to Maine if they are coming from a COVID-19 "hot spot" such as Detroit, Chicago or New York City.
B. New Hampshire
1. Reopening Plan
New Hampshire Governor Chris Sununu issued a Stay at Home 2.0 plan and corresponding emergency order that reopens the economy in phases. The plan calls for specific types of businesses and industries to phase-in or expand services over the course of May, in accordance with universal and industry-specific guidance.
As of May 4, 2020, certain healthcare services were allowed to reopen. On May 11, 2020, the list expanded to retail stores, drive-in movie theaters, public and private golf courses, barbershops and hair salons, and dental offices. Finally, on May 18, 2020, restaurants were allowed to reopen outdoor dining services. A variety of industry-specific guidance that businesses must follow has also been issued, including guidance for manufacturers, hospitals, retail establishments, dental services and restaurants.
2. Voluntary Travel Guidance
While Governor Sununu has encouraged "individuals from out-of-state who come to New Hampshire for non-work-related reasons and who stay for an extended period of time to voluntarily self-quarantine," he has not issued any orders to that effect. His request "does not apply to individuals making same-day trips to New Hampshire for work, to purchase essential goods or services, or to check in on a close family member or friend."
C. Rhode Island
1. Reopening Plan
Rhode Island began its phased reopening on April 27, when Rhode Island Governor Gina Raimondo laid out a three-phase plan. Advancement through the plan will be determined based on public health metrics including hospital capacity, hospitalization rates and rate of spread.
Under Phase 1, which began by order of the governor on May 9, Rhode Islanders are no longer required to stay at home, but social gatherings continue to be limited to five people. Noncritical retail businesses are allowed to resume in-person operations but subject to strict capacity limitations (the state had previously closed noncritical retail businesses and certain other businesses, rather than noncritical businesses generally). Restaurants may offer only takeout, delivery and limited outdoor dining. Mass-gathering (e.g., movie theaters) and close-contact businesses (e.g., barbershops) must remain closed. Remote work continues to be encouraged. Face masks continue to be required where social distancing cannot be maintained, and businesses must comply with health and safety requirements to monitor for and prevent the spread of the virus.
Rhode Island has not released a timeline for Phase 2 or Phase 3, other than Governor Raimondo's statement that Phase 2 is not likely to begin before June. In Phase 2, social gatherings of up to 15 people will be allowed, and more restaurants and close-contact businesses (e.g., barbershops) will be allowed to resume normal operations. In Phase 3, social gatherings of up to 50 people will be permitted. Schools will reopen, and restaurants, retail and other businesses will be allowed to serve larger numbers of customers. Working from home will still be encouraged, but more employees are expected to be able to return to the office. Under both Phase 2 and Phase 3, masks will continue to be required, and employers will continue to be subject to health and safety requirements.
2. Mandatory Travel Restrictions
Rhode Island has enforced very strict restrictions for travelers to its state. Those restrictions have not changed - Governor Raimondo's order instituting Phase 1 keeps in place a strict requirement that individuals traveling to Rhode Island for non-essential purposes self-quarantine for 14 days. Rhode Islanders commuting to work in another state must self-quarantine when not at work. Individuals have been arrested for failing to comply with these requirements.
D. Vermont
1. Reopening Plan
Vermont is already on Phase 6 of its reopening plan. At this point, all businesses are open or are reopening by May 22, except that certain businesses involving close contact or mass gatherings (including barbershops, child care programs and colleges) are not yet allowed to resume in-person operations. Businesses that are open are subject to restrictions, including capacity and social distancing limitations. Specifically, under the reopening orders that have been issued through Governor Philip Scott's May 15 order, nonessential retail businesses may resume operations subject to strict capacity limitations. Other businesses may resume subject to limits on the number of persons interacting: Outdoor businesses (e.g., landscaping) may resume work with 10-person crews; professionals (e.g., attorneys) may resume one-on-one meetings with clients; and construction, manufacturing and distribution operations may resume work with "as few employees as necessary to permit full operations." Lodging operations (e.g., hotels) may resume limited operations on May 22. Restaurants continue to be limited to takeout and delivery. Employers are encouraged to continue remote work to the extent practicable.
2. Mandatory Travel Restrictions
Quarantine requirements for those crossing the Vermont border are determined based on whether such border crossing is part of an individual's regular routine. Those who cross the border regularly (including for work, healthcare, groceries, family visitation, and recreation) may do so without self-quarantining. Others must self-quarantine for 14 days after crossing the border.
IV. CONCLUSION
As Massachusetts and the rest of New England reopen their economies, it is important that businesses remain vigilant in tracking the states' plans and ensure they are aware of the applicable regulations governing their reopening processes.
Footnotes
1 "High-risk populations," as defined by the Centers for Disease Control and Prevention (CDC), should be allowed to continue to work from home if possible, and those individuals should be given priority consideration for workplace accommodations. It is important to bear in mind that the federal Equal Employment Opportunity Commission prohibits employers from discriminating against high-risk populations such as older workers and those with preexisting disabilities in the context of COVID-19, by, for example, categorically excluding their return to the workplace.
2 The governor's order does not apply to healthcare facilities or providers licensed by the Department of Public Health (DPH). It also does not apply to municipal legislative bodies, the General Court or judiciary, or federal governmental entities. Nor does it apply to public and private secondary schools; residential and day schools for special needs students; licensed, approved or exempt child care programs and emergency child care programs operating under emergency authorizations; facilities operated by the Department of Corrections or any sheriff; facilities operated or licensed by the Department of Mental Health or the Department of Developmental Services; or other facilities that the DPH exempts in writing from the terms of the order, provided that, for each of these exemptions, the DPH shall consult with the responsible authority and provide COVID-19 health and safety guidance as needed.
3 The standards do not "displace otherwise applicable health and safety rules issued by any Federal, State, or Local authority acting within the scope of its lawful authority." For instance, businesses must still follow applicable Occupational Safety and Health Administration (OSHA) requirements. WilmerHale previously issued alerts on March 16 and April 30 that discuss COVID-19-related OSHA guidance and requirements.
4 Cities and towns are authorized to enforce the COVID-19 Construction Safety Guidance using their public health staff, building inspectors or any other appropriate official or contractor, and, if multiple violations are found, they can require the owner and/or contractor to safely secure the site and pause construction activities until a corrective action plan is prepared, submitted and approved by the city or town.
5 Manufacturing is defined as "businesses and other organizations engaged in making, altering, repairing, finishing, or adapting for sale any article or part."
6 Laboratories are defined as "businesses and other organizations operating within facilities equipped and used for scientific experiments, research, or the manufacture of drugs or chemicals or similar products."
7 WilmerHale previously issued a client alert summarizing the Connecticut reopening order.
Originally published May 19, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
