At a press briefing on May 11, 2020, South Carolina Governor Henry McMaster announced that close contact service providers, fitness and exercise centers, commercial gyms, and commercial and public pools would be permitted to resume operations in a limited capacity on May 18, 2020. “Close contact service providers” include barbershops, hair salons, waxing salons, threading salons, nail salons and spas, body art facilities and tattoo services, tanning salons, massage-therapy establishments, and massage services. Governor McMaster called on South Carolinians to “continue to follow the advice and recommendations of … public health experts” as a necessary predicate to the state’s ability to resume business operations safely.
While the applicable executive order has not yet been published, the governor’s accelerateSC task force, in consultation with the South Carolina Department of Health and Environmental Control, has issued “Re-opening Guidelines for Close Contact and/or Service Industry Employers,” as well as more industry-specific guidelines for cosmetology establishments, gyms and fitness centers, and public or commercial pools. Each set of guidelines contains a continued endorsement of practices that have been recognized as being generally applicable to all businesses, such as basic social distancing, routine cleaning, and self-monitoring for symptoms. The guidelines also provide recommendations specific to the respective classes of businesses. Some highlights of the core areas addressed in the recommendations follow below.
- Engineering controls (i.e., installing physical barriers and implementing task isolation protocols)
- Administrative controls (i.e., training and education, signage to provide social distancing guidance, and thorough sanitation)
- Workplace cleanliness (i.e., maintaining a cleaning and disinfecting schedule and training employees on proper use of chemicals)
- Personal cleanliness (i.e., posting handwashing signs in restrooms, and providing hand sanitizer, tissues, and single-lined trash receptacles for employees and clients)
- Pre-entry protocols (i.e., limiting the number of customers and screening customers prior to entry)
- Social distancing and personal protective equipment (PPE)
- Waiting/reception areas (i.e., establishing digital check-in processes, if possible, and limiting the number of clients in waiting areas)
- Service provision (i.e., implementing extensive cleaning measures and requirements for staff to wear gloves and masks, and to wash hands prior to each service)
- Checkout (i.e., exploring digital prepayment options or digital check-in/checkout processes)
- End-of-day workplace cleanings
- Entering the building (i.e., staff and member temperature checks)
- Staffing (i.e., training, wearing masks and gloves, and practicing social distancing)
- Social distancing (i.e., capacity limited to the lesser of 5 people [staff and members] per 1,000 square feet or 20 percent capacity, social distancing signage, and limits on class sizes)
- Enhanced cleaning and sanitation protocols (i.e., no equipment sharing and water fountains for refilling water bottles only)
- Restrictive use of facilities (i.e., strongly suggested to prohibit basketball, pickleball, and racquetball; limit use of saunas or steam rooms, as well as showers in locker rooms; and discontinue providing coffee and refreshments)
- Limited to the lesser of 5 people (staff and members) per 1,000 square feet or 20 percent capacity
- Commonly used surfaces should be cleaned and disinfected
- Signs and training regarding social distancing
- Remove from service or regularly disinfect sharable equipment (e.g., kickboards, floats, etc.)
While the guidelines are characterized as nonmandatory recommendations, employers may nevertheless want to consider them carefully. The escalating tide of potential claims for workplace and perhaps premises liability arising from COVID-19 exposures by employees and customers has been widely documented. Attorneys representing claimants will be seeking sources of authority to offer courts to establish standards of care and can be expected to look to public documents such as the Re-opening Guidelines. Additionally, employers may want to be mindful of potential occupational safety and health obligations, particularly under the Occupational Safety and Health Act’s General Duty Clause, which is often informed by reference to industry standards and other sources of information alleged to constitute “notice,” even if not independently legally binding.
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. Critical information for employers is also available via the firm’s webinar programs.