By Erica E. Flores, Esq.
It’s official—provided that the numbers of new infections and hospitalizations continue to trend downward, Governor Baker announced on Monday that Massachusetts will begin a gradual reopening of the state’s economy on May 18, 2020. The reopening will be conducted in four phases and every business that is allowed to reopen will be required to comply with mandatory safety standards developed by the Department of Public Health (DPH). We anticipate additional guidance and more details about all of this when the Governor’s Reopening Advisory Board publishes its report in the coming days. But because compliance with the new safety standards will require quite a lot of preparatory work, we have laid out everything we know so far here and will publish updates as we receive new information.
The phased reopening will begin with the Start phase, which will allow the reopening of business in industries where direct interaction among employees and others can best be limited. During this phase, all employees will be required to wear face coverings and all customers, employees, vendors, and other visitors will be required to stay six feet apart whenever possible. The second phase, called Cautious, will allow businesses in other industries to resume operations with certain restrictions, including capacity limitations. The third phase, Vigilant, will see the reopening of businesses in additional industries with guidance, and will be followed by the fourth and final phase, New Normal, expected to occur after a vaccination or effective treatment for COVID-19 has been developed. Governor Baker noted that the decision to start each phase will be based on public health data and did not rule out the possibility that the economy will have to revert back to an earlier phase if necessary due to a surge of new cases.
Businesses that do reopen will be required to attest that they are in compliance with strict new Workplace Safety Standards developed by DPH in consultation with the Reopening Advisory Board. The standards fall into four categories.
First, the Social Distancing standards require employers to require all persons on their premises to remain at least six feet apart whenever possible, whether inside or outside, including customers, vendors, and other visitors. They also require employers to establish “protocols” to ensure that employees are able to maintain adequate social distance, to mandate employee use of face masks or coverings, and to create and post new signage, presumably to serve as visible reminders of these new rules.
Second, the Hygiene Protocols standards require employers to “ensure frequent hand washing by employees,” provide a station or other location where employees can wash their hands throughout their workplaces, maintain adequate hand-washing supplies, and regularly sanitize high touch areas, like work stations, door handles, and restrooms.
Third, the Staffing and Operations standards require employers to train their employees about the Social Distancing and Hygiene Protocols safety standards, to develop and implement a plan “for employees getting ill from COVID-19 at work, and a return-to-work plan,” and to adopt some policy or procedure to ensure that employees who display symptoms associated with COVID-19 do not report to work.
Finally, the Cleaning and Disinfecting standards require employers to establish and maintain cleaning protocols specific to their business, to disinfect all “common surfaces” at intervals that are appropriate to their business, and to clean and disinfect appropriately whenever an active employee is diagnosed with COVID-19. DPH did not explain what cleaning protocols and intervals are appropriate for each type of business, but did promise that additional sector-specific protocols will be published with additional standards and best practices for particular industries.
These new standards leave many open questions. For example: What types of “protocols” does DPH expect employers to implement to promote social distancing? Do employers have to supply or reimburse for employee face masks or coverings? Can employers make exceptions for employees who have respiratory illnesses or other conditions that may be exacerbated by a face covering? What should be included on the new signage? How many hand-washing stations are enough? Who is qualified to conduct the mandatory training? And what is meant by a plan “for employees getting ill from COVID-19 at work”?
We may or may not have answers to these questions right away, but one thing is for sure – employers cannot reopen until they have crafted and implemented these new policies and procedures, so businesses in every industry need to start planning right away.
Employers who have questions about any of these issues, or who are looking for guidance in preparing to reopen their doors, should feel free to contact us at (413) 737-4753. In the meantime, Skoler Abbott continues to monitor all state and federal developments related to the COVID-19 crisis, and we will continue to publish updates on our blogs.