By Maureen James

If you’re anything like me, you’ve spent the last two months without barriers between work and home, parenting and teaching, gluttony and dieting.  Before dragging yourself out of bed, you think “when this is all over I’m going to…”  On Monday, May 18, 2020, Governor Baker gave those with cabin fever a glimmer of hope.

The Reopening Massachusetts Plan outlines four phases to expand the economy, over time, from essential businesses and services to all businesses: (1) Start, (2) Cautious, (3) Vigilant, (4) New Normal.  During this process, regardless of the phase, all businesses must comply with the new Mandatory Workplace Safety Standards and complete a mandatory self-certification.  Those businesses deemed “essential” under earlier government orders that have operating prior to the start of Phase 1 must meet the standards and complete the self-certification by May 25, 2020.

The self-certification involves three parts:

1. Develop a written COVID-19 Control Plan which outlines the efforts to prevent the spread of the virus.  The state has offered a template plan for businesses to utilize, otherwise they can create their own so long as it contains all of the necessary information.  These plans are maintained with business records and are not submitted to the state.
2. Complete and sign a Compliance Attestation.  This must be posted in an area visible to both employees and visitors to the business.
3. Display two posters issued by the state—one for employers and one for employees—which remind them of important prevention tools including social distancing, hygiene, cleaning, and disinfecting.

Phase 1 started on May 18^th for construction, manufacturing, and places of worship.  On May 25^th, it expands to include office spaces, barber shops and hair salons, pet groomers, car washes, some outdoor recreation, and laboratories.  It should be noted that office spaces inside the City of Boston are an exception and may not open before June 1, 2020.  Each of the areas opening during Phase 1 must abide by their industry-specific guidelines and the Mandatory Workplace Safety Standards required of all businesses.  The state has been clear that these Phase 1 businesses are not required to reopen on these dates and can delay if the business feels it is not ready, or able, to comply.  The Governor has also encouraged businesses to continue to have employees telework, if feasible, throughout the phased reopening.

Phase 1 will last at least three weeks, depending on the data received on the spread of COVID-19.  As that time progresses, the state is working to prepare for Phase 2 (expansion of retail, restaurants, and hotels) and Phase 3 (bars, gyms, and casinos).  Phase 4 will likely be quite a way away, as it will see the events with the largest crowds, such as professional sporting events and concerts.

The industry-specific guidelines for Phase 1 businesses contain requirements for the key areas of social distancing, hygiene, staffing and operations, cleaning, and disinfecting.  During this Phase, businesses must read their specific guidelines carefully.  We highlight just some of the many requirements here.

• Social Distancing:
  • Ensure six feet of separation between individuals, unless it creates a safety hazard due to the nature of the work.
  • Close or reconfigure common spaces for employees, such as break rooms, where individuals are likely to congregate to allow for six feet of separation.
  • Redesign work stations to ensure adequate physical separation.  If the work stations cannot be spaced out, erect physical partitions.
  • Stagger shifts and breaks to allow for social distancing.
  • Limit visitors and limit meeting sizes.
• Hygiene:
  • The guidelines for office spaces states that face coverings must be worn when employees cannot maintain social distancing.
  • For manufacturing and laboratories, employees must wear masks unless the individual has a medical condition that would make it unsafe for them, or doing so creates an unsafe condition in the workplace.
  • Employers must provide adequate space and supplies for handwashing and hand disinfecting.
• Staffing and Operations:
  • Offices can only operate at a reduced capacity:
    • Capacity will be limited to 25 percent of (a) the maximum occupancy level specified in any certificate of occupancy OR similar permit or as provided for under the state building code; or (b) the business or organization’s typical occupancy as of March 1, 2020.
    • Any business or other organization that has been operating as a “COVID-19 Essential Service” as of May 18, 2020, shall have until July 1, 2020, to comply with these occupancy limitations.
    • Businesses and other organizations may exceed this maximum occupancy level based on a demonstrated need for relief based on public health or public safety considerations or where strict compliance may interfere with the continued delivery of critical services.
  • All employers must provide training to their employees regarding safety protocols, including those regarding social distancing, hygiene, cleaning, and disinfecting.
  • Employers should have policies that encourage workers to stay home if ill and to report positive COVID-19 test results to the employer.  (We will be putting together a separate blog post to discuss the OSHA reporting requirements associated with COVID-19.)
• Cleaning and Disinfecting:
  • Businesses must provide adequate supplies for cleaning and disinfecting.
  • High volume touchpoints must be cleaned routinely, at least once per day, but more often if feasible.  Shared use products, or areas, must be cleaned between each use. 
  • A log of cleaning and disinfecting must be maintained.
  • The guidelines also state, “In event of a positive case, shut down site for a deep cleaning and disinfecting of the workplace in accordance with current CDC guidance.”

There are some inconsistencies between the Mandatory Workplace Safety Standards and the industry-specific guidelines.  At this time it is not 100% clear how they are to be resolved.  It’s our understanding that the state will view multi-use locations as having separate requirements.  For example, a manufacturing facility that also contains office space will have to comply with  industry-specific guidelines for manufacturing where the manufacturing is taking place and those pertaining to offices in the facility’s office space. 

Based on the information we have from the state, their goal during the phased opening is to prevent the spread of COVID-19, so implementation of the Standards and guidelines should be undertaken with attention to the specifics of the guidelines but also the spirit behind them.  Enforcement will be undertaken by the state Department of Labor Standards, state Department of Public Health, and local boards of health based upon submitted complaints and investigations.  As the phases are rolled out, the state has indicated their primary interest is in education but that does not mean they are not willing to pursue violators.  There will be levels of enforcement, including verbal warnings, written warnings, fines up to $300 per occurrence, and issuance of a cease and desist letter after the third fine is issued.  On May 20^th, the Attorney General also launched an online reporting tool for employees who feel they are being subjected to unsafe working conditions for investigation by the Fair Labor Division.

For those reopening under Phase 1, implementation of the Mandatory Safety Standards and industry specific guidelines will be extremely specific to the unique structure of their business, their facility, and their needs.  We will continue to keep you apprised of any further guidance that is issued by the state.  If you have questions about reopening your business, or compliance with the requirements under the reopening plan,  please feel free to contact our attorneys.