In response to the COVID-19 pandemic, non-essential businesses across the United States faced executive orders by state Governors instructing them to close or significantly limit all in-person operations. 

States are now considering how best to reopen their economies, balancing the desire to permit businesses to operate with the need to continue to slow the spread of COVID-19.  The federal government has unveiled its Guidelines for Opening Up America Again, a three-phased approach intended to help state and local officials determine when and how to reopen their economies while continuing to protect Americans from the spread of COVID-19. 

A phased approach is one in which restrictions are modified in phases, gradually moving towards resuming business as usual with no particular COVID-19 related restrictions.  Such approaches often rely on gating criteria to establish when it is time to move to the next phase, for example whether COVID-19 related symptoms and confirmed cases have decreased, whether hospitals are capable of treating their patients without relying on crisis care, and whether sufficient testing is available. Individual states have also begun issuing and enacting their own proposed guidelines and plans, many of which follow the federal government's three-phased approach.

Such approaches often rely on gating criteria to establish when it is time to move to the next phase, for example whether COVID-19 related symptoms and confirmed cases have decreased, whether hospitals are capable of treating their patients without relying on crisis care, and whether sufficient testing is available. Individual states have also begun issuing and enacting their own proposed guidelines and plans, many of which follow the federal government's three-phased approach. Below is a summary of the federal guidelines followed by a snapshot of the state-issued plans and fulsome summaries of the key aspects of those plans.2

Federal Guidelines for Opening Up American Again

The Opening Up America Again guidelines, as further supplemented by the May 2020 CDC Report, divide a plan for a return to operations into three phases. They also note that states may need to tailor the guidelines for local circumstances.

Gating Criteria. Before states begin the phased reopening, the federal guidelines propose they satisfy the following criteria:

  • Symptoms.
    • Downward trajectory of influenza-like illnesses reported within a 14-day period AND
    • Downward trajectory of cases with symptoms resembling COVID-19 reported within a 14-day period.
  • Cases.
    • Downward trajectory of documented COVID-19 cases within a 14-day period OR
    • Downward trajectory of positive COVID-19 tests as a percent of total tests within a 14-day period (flat or increasing volume of tests).
  • Hospitals.
  • Treat all patients without crisis care AND
  • Robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

Phase One. In "Phase One", the federal guidelines encourage all vulnerable individuals to continue to shelter in place, and members of a household with vulnerable residents should be aware of the heightened risk to vulnerable individuals within their residence. The federal guidelines also suggest that:

  • Businesses:
    • Continue to encourage telework, whenever possible and feasible with business operations.
    • If possible, return to work in phases.
    • Close common areas where personnel are likely to congregate and interact, or enforce strict social distancing protocols.
    • Minimize non-essential travel and adhere to CDC guidelines regarding isolation following travel.
    • Strongly consider special accommodations for personnel who are members of a vulnerable population.
  • Large venues (e.g., sit-down dining, movie theaters, sporting venues) can operate under strict physical distancing protocols.
  • Elective surgeries can resume, as clinically appropriate, on an outpatient basis at facilities that adhere to Centers for Medicare and Medicaid Services ("CMS") guidelines.
  • Gyms can open if they adhere to strict physical distancing and sanitation protocols.
  • Bars should remain closed.

Phase Two. The federal guidelines suggest that states move to "Phase Two" upon the satisfaction of the gating criteria, above, for a second time and in the absence of any evidence indicating a rebound of COVID-19. During this phase, the federal guidelines encourage continued shelter in place for vulnerable individuals. The federal guidelines loosen the recommended restrictions for businesses in "Phase Two" as follows:

  • Removes the proposal to return to work in phases.
  • Recommends moderate, rather than strict, social distancing protocols for close common areas where personnel are likely to congregate and interact.
  • Removes the recommendation to minimize non-essential travel and to adhere to CDC guidelines regarding isolation following travel.
  • Recommends moderate, rather than strict, physical distancing protocols for large venues.

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Footnotes

1 Thanks to Adrienne Dahrouge, Erik Bakke, Julie-Irene Nkodo, and Hyatt Mustefa for their contributions.

2 Please also see Cleary's Response to COVID-19: State Executive Orders memo for information regarding state executive orders closing non-essential businesses.

Originally published Apr 30, 2020.

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