Massachusetts Adopts Four-Phase Approach to Reopening

On May 18, 2020, Massachusetts Governor Charlie Baker announced details of the Baker-Polito administration’s four-phase approach to reopening Massachusetts and released guidelines and requirements for businesses resuming operations. The process will be data-driven and fluid with the expectation that there will be at least three weeks before the start of each phase.

Phase 1, Step 1

Beginning May 18, 2020, manufacturing, construction, and places of worship may begin operating. In addition, according to the Reopening Massachusetts report, “[h]ospitals and community health centers that attest to specific public health and safety standards can begin to provide high priority preventative care, pediatric care, and treatment for high risk patients.”

Phase 1, Step 2

According to the Reopening Massachusetts report, beginning May 25, 2020, other health care providers that attest to the public health and safety standards can provide limited in-person services. Laboratories and life science facilities, some personal services (including hair salons, pet grooming, and car washes), some outdoor activities, retail (for remote fulfillment and curbside pick-up), and office spaces outside of Boston may also resume. According to the report, for those workplaces that may reopen, work from home policies and staggered work schedules are strongly encouraged, and offices “should restrict workforce presence to [no more than] 25% maximum occupancy.” Office space in Boston may reopen on June 1, 2020.

After Phase 1 commences, public health trends will be monitored and will dictate the start of the next phase.  The six factors to be monitored are: (1) COVID-19 positive test rate; (2) number of individuals who died from COVID-19; (3) number of patients with COVID-19 in hospitals; (4) healthcare system readiness; (5) testing capacity; and (6) contact tracing capabilities. More information about when specific industries are expected to reopen, can be found in the Guidance for Industries on the Reopening Plan.

Massachusetts Requirements for Reopening Businesses

Before reopening, business must follow the Mandatory Workplace Safety Standards for Workplaces guidance as well as sector-specific protocols and best practices. Businesses must also develop a written COVID-19 control plan that outlines how their workplaces will prevent the spread of COVID-19. These plans do not need to be submitted for approval, but must be maintained at the workplace and made available in case of an inspection. Customer-facing businesses must display a signed compliance attestation poster within the premises in a place that is visible to workers and visitors. Businesses must also display posters (employer poster and worker poster), which describe rules for social distancing, hygiene protocols, and cleaning and disinfecting.

The Baker-Polito administration also issued guidelines to educate business owners on the supplies needed to return to the workplace, complete with a portal to connect with vendors.

Business that are designated as essential pursuant to Governor Baker’s emergency order may remain open but are required to complete the above requirements by May 25, 2020.

All employers should consider whether to assess their operations to determine what mitigation measures are required to safely reopen workplaces and reduce the risk of spreading the infection between employees and/or customers. In addition, employers may want to consider whether employee testing will be part of their particular operations as testing becomes more available. Employers may have to implement different reopening plans and timelines for different locations or business units.

Considerations for Massachusetts Employers

Below are practical considerations for Massachusetts employers preparing for the unique challenges of safely reopening their workplaces. These considerations are based upon currently available guidance and the mandatory workplace safety standards, and may be updated or supplemented by additional guidance from Governor Baker or by regulations developed by federal, state, or local agencies. Keep in mind that specific sectors may also have additional or more detailed requirements.

1. Workplace Elements and Mitigation Measures

• According to the standards, employers must ensure that “all persons, including employees, customers, and vendors . . . remain at least six feet apart to the greatest extent possible, both inside and outside of workplaces.”
• The standards also require employers to reduce office density to no more than 25 percent of maximum occupancy.
  • Employers may consider extending remote work policies for certain groups of employees, or implementing staggered shifts or alternate workdays.
• Employers must “[r]equire face coverings or masks for all employees” in the workplace “except where unsafe due to medical condition or disability.”
• Employers may want to consider requiring customers to wear face coverings. In some sectors, face coverings are required for customers.
• Employers may want to consider:
  • eliminating or limiting in-person meetings;
  • evaluating whether to close common areas (such as breakrooms and cafeterias) or limit access to such rooms;
  • establishing procedures for regular cleaning and disinfecting of high use and high traffic work areas;
  • evaluating whether to limit or cease work-related travel;
  • providing disposable masks and gloves for employees who use public transportation that can be safely disposed upon arrival to the workplace;
  • using technology to limit employee interaction where possible; and
  • implementing physical barriers, such as partitions between workspaces or employees, or between customers and employees.

2. Policies and Practices

• Employers must “[e]stablish and communicate a worksite specific COVID-19 Prevention Plan for all office locations,” including a mechanism for employees to report positive COVID-19 test results and to reenter the workplace following a COVID-19 diagnosis or symptomatic period.
• The plan should include training managers and human resources personnel on how to handle reports of COVID-19 cases or symptoms.
• Employers may want to consider evaluating their current policies and practices, including:
  • sick leave policies to provide job-protected paid or unpaid leave for sick or symptomatic employees;
  • tardiness or absentee policies to enable safe commutes to work without penalty, so that employees can wait for less crowded public transit or elevators;
  • remote work policies to prepare for possible long-term or permanent remote work for some employees;
  • harassment policies to prohibit harassment or discrimination based on COVID-19-positive test results; and
  • leave and accommodation policies to ensure employees have access to leaves of absence or accommodations when needed.
• Employers may want to consider creating social distancing policies and training that describe the company’s mitigation measures, employee responsibilities (including complaint reporting procedures), and consequences for failing to follow the guidelines.
• In some sectors, employers are required to implement a policy of logging “everyone who comes in contact with the site to enable contact tracing, including temporary visitors.”

3. Cleaning and Hygiene Practices

• Under the standards, employers must establish and maintain cleaning protocols specific to the business.
• The standards require employers to “provide training to workers on up-to-date safety information and precautions including hygiene and other measures aimed at reducing disease transmission.”
• “In the event of a positive case [of COVID-19],” employers must “shut down site for a deep cleaning and disinfecting of the workplace in accordance with current CDC [Centers for Disease Control and Prevention] guidance.”
• Employers must develop workplace practices for routinely cleaning and “disinfecting of heavy transit areas and high-touch surfaces,” such as workstations, doorknobs, and restrooms.
• Employers “must . . . provide hand washing capabilities throughout the workplace.”
• Employers may want to consider deep cleaning the workplace prior to employees returning.
• Employers may want to consider discouraging employees from using and touching other workers’ equipment.

Governor Baker is expected to continue to provide updated guidance in the coming weeks and months, and guidance may be updated in response to how certain public health indicators are affected by the gradual reopening of businesses. The latest information is available on the Massachusetts Reopening website.www.mass.gov/reopening.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.