State flag of Ohio

On May 29, 2020, Governor Mike DeWine and Ohio Department of Health Director Amy Acton issued the “Director’s Updated and Revised Order for Business Guidance and Social Distancing.” As expected, the new order extends many of the same requirements and guidelines previously in place through the (now expired) “Stay Safe Ohio” order, including requiring employees to wear face coverings except in limited circumstances, and sector-specific operating mandates. These requirements are now extended through July 1, 2020, with some notable changes and additions. As new sectors of the economy reopen, Director Acton has issued a flurry of new orders to guide businesses in several industries. Below is a summary of what employers need to know.

Director’s Updated and Revised Order for Business Guidance and Social Distancing

The May 29 order, which replaces the “Stay Safe Ohio” order, retains many of the same requirements with which covered businesses must comply as well as notable changes and additions:

  • The updated order extends the ban on all public and private gatherings of more than 10 people (weddings, funerals, and religious services are excepted, though wedding receptions are limited to 300 people and subject to Restaurant, Bars, and Banquet & Catering Facilities/Services Guidance);
  • Businesses must require employees to wear face coverings subject to the same limited exceptions (i.e., covering is prohibited by law or regulation, covering would violate industry standards, covering is not advisable for health reasons, covering would violate safety policies, employees are working alone in assigned work areas, there is a practical reason why the covering cannot be worn);
  • Employees are still required to conduct daily symptom assessments, “including for cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, [and] sore throat”—new to the list of symptoms is “loss of taste or smell”;
  • All previous social distancing requirements remain in place;
  • The previously issued sector-specific guidance for Manufacturing, Distribution, and Construction industries remains in place, with new recommendations (not requirements) to:
    • “provide stipends to employees for transportation”;
    • “split into sub-teams” to avoid contact;
    • “reduce pace to allow less FTEs per line”;
    • “close cafeteria and gathering spaces or conduct regular cleanings”; and
    • perform daily deep disinfection of entire facility.
  • The previously issued sector-specific guidance for Consumer, Retail, and Services industries remains in place—and now includes newly reopened entertainment venues and businesses—with the requirement that businesses allow customers or visitors to wear face coverings (with limited exception) and recommendations (not requirements) to:
    • “group employees by shift to reduce exposure”;
    • “hav[e] customers wear face coverings at all times”;
    • ask customers to “complete health questionnaires for symptoms at entry point”;
    • “provide face coverings [to customers] upon entry”;
    • “accept customers by appointment only”;
    • “increase availability of curb-side pickup”;
    • “suspend[] return policies”;
    • “close once a week for deep cleaning”; and
    • maximize checkout space and use contactless payment options.
  • The previously issued sector-specific guidance for General Office Environments remains in place with new recommendations (not requirements) to:
    • ensure seating distance of six feet or more;
    • “hav[e] customers wear face coverings at all times”;
    • “enable natural workplace ventilation”;
    • have “health questionnaire for symptoms at entry” and develop “temperature taking protocol”;
    • “close cafeteria and gathering [spaces] or conduct regular cleanings”
    • limit congregating of employees;
    • “divide . . . staff into groups and establish rotating shifts”; and
    • have three weeks of cleaning supplies available.
  • Employers must still immediately isolate and seek medical care for individuals who develop symptoms at work, and contact local health departments about suspected cases or exposures. The updated order recommends that employers, if possible, take the following steps:
    • shut down the facility for deep cleaning;
    • work with the local health department to identify potentially exposed individuals to assist with contact tracing;
    • “once testing is readily available, test all suspected infections or exposures”; and
    • contact the local health department after testing for care and contact tracing guidance.
  • The previously issued protocols (summarized below) remain applicable to all businesses. According to the updated order, businesses and employers should:
    • “[s]trongly encourage as many employees as possible to work from home”;
    • ask sick employees to stay home until recovered;
    • “[e]nsure that [their] sick leave policies are up to date, flexible, and non-punitive”;
    • “encourag[e] employees to do a self-assessment each day to check if they have any COVID-19 symptoms”;
    • “[s]eparate . . . and send [sick] employees home immediately” and “restrict their access to the business until they have recovered”;
    • reinforce key messages, place posters in visible areas, and provide “soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees”;
    • frequently clean commonly touched surfaces and “[p]rovide disposable wipes so that commonly used surfaces can be wiped down by employees before each use”;
    • “[b]e prepared to change business practices if needed”; and
    • “[c]omply with all applicable guidance from the the U.S. Centers for Disease Control and Prevention [CDC] and the Ohio Department of Health regarding social distancing.”

The May 29 order rescinded previous restrictions including: (1) the requirement that people stay home unless engaged in permissible travel and/or activities; and (2) the requirement that people refrain from travelling except for permitted activities. Instead, the updated order urges, but does not require, those who are more vulnerable to COVID-19 to take additional precautions. The only restrictions on travel apply to “[p]ersons who have tested positive for COVID-19, are presumptively diagnosed with COVID-19, or are exhibiting symptoms identified in the screening guidance available from the [CDC] and the Ohio Department of Health, [such as fever, shortness of breath, cough, and loss of taste or smell,] unless they have recovered.” These individuals are not permitted to enter the state unless doing so under orders to seek medical care.

The May 29 order also clarifies that the following businesses must remain closed until further notice:

  • All K-12 schools, adult day support or vocational habilitation centers in congregate settings, and older adult day care and senior centers; and
  • Entertainment and recreation centers with the exception of:
    • Rolling skating rinks, ice skating rinks, and indoor miniature golf facilities provided “they comply with non-contact sports, skills training and golf guidance contained in separate Director’s orders”; and
    • Bowling alleys, health clubs, fitness centers, gyms, spas, yoga studios, fitness-based public recreation centers, and indoor sports facilities provided they comply with separate orders previously issued as applicable to each.

Other Orders Affecting Newly Reopening Industries and Activities

Daycares. On May 29, 2020, Director Acton issued a new Director’s Order that Reopens Facilities Proving Child Care Services, with Exceptions. This order allows all facilities providing child care services in Ohio (whether state licensed or not) to reopen provided they adhere to proper safety standards set forth by the Ohio Department of Health. Further, all facilities licensed by the Ohio Department of Education (ODE) that offer preschool or provide school age child care programs can reopen once ODE has rules in effect that meet or exceed requirements set by the Ohio Department of Jobs and Family Services and the facilities meet those rules and comply with the safety standards in the order. The safety standards include many requirements applicable to other businesses as well as specific protocols for child drop-off and pick-up, and safety procedures to follow during the business day. This order remains in place through July 1, 2020.

Campgrounds. On May 20, 2020, Director Acton issued guidance specific to campgrounds. Campgrounds were permitted to reopen as of May 21, 2020, but must comply with the “Camp Safe Ohio” order. The order sets forth social distancing requirements and requires campgrounds to permit patrons to wear face coverings. This order remains in place through July 1, 2020.

Gyms, Fitness Venues, Dance Studios, and Amateur/Youth/Entertainment Sports. On May 22, 2020, Director Acton issued two orders providing operational requirements for gyms, fitness venues, dance studios, and organizations that facilitate youth or amateur sport activities. The first order, “Director’s Order that Reopens Gyms, Dance Instruction Studios, and Other Personal Fitness Venues, With Exceptions,” states that in addition to limiting capacity, facilities must organize their locker rooms, workout spaces, and classrooms to adhere to social distancing requirements. Under the order, ancillary services, such as food or beverage stations, must adhere to sanitation guidelines. This order went into effective on May 26, 2020, and remains in place until July 1, 2020.

The second order, “Director’s Order that Provides Guidance for Baseball, Softball, Batting Cages, Golf Courses, Miniature Golf, Local and Public Pools and Aquatic Centers, Tennis Facilities, Skills Training for All Sports, and General Non-Contact Sports including Bowling Alleys, with Exceptions,” also went into effect on May 26, 2020, and remains in place until July 1, 2020. This order provides the following:

  • Coaches, athletes, officials, and spectators must all adhere to a comprehensive set of guidelines regarding participation, including conduct on the field and sidelines, and sanitation.
  • Notably, the order does not address professional sport venues.
  • The order does not include any sort of indemnification or immunity for private schools, organizations, or businesses that reopen for these limited athletic activities.

Consistent with guidance in other sectors, these orders require employees to wear face coverings subject to limited exceptions, and require that businesses permit patrons and participants to wear face coverings.

K-12 Schools. Finally, on May 22, 2020, Director Acton issued an order formally closing Ohio’s K-12 public schools through June 30, 2020. Schools may host sporting activities provided they comply with required restrictions for those activities. The order does not apply to preschools, childcare programs, day camps, or other educational programs permitted by a local health authority.

The Ohio Department of Health’s “Responsible RestartOhio” website includes a comprehensive list of all sector-specific operating requirements.

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. Important information for employers is also available via the firm’s webinar programs.

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