Legal Update

May 18, 2020

Governor Baker Announces Details of Massachusetts Reopening Plan

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Seyfarth Synopsis: On May 18, 2020, Massachusetts Governor Charlie Baker released the Reopening Massachusetts Plan created by the Reopening Advisory Board, providing further details on each of the four reopening phases. The Governor announced that several industries may begin reopening today and within the next week. Among those types of businesses permitted to reopen immediately, subject to guidelines, are construction, manufacturing, places of worship, and firearms retailers and shooting ranges. Other businesses that may reopen as part of Phase 1 effective May 25 include laboratories, office spaces outside of Boston, barber shops and hair salons, car washes, drive-in movie theaters, and pet grooming. Effective May 25, retailers may engage in remote fulfillment and curbside pickup, and they may move to in-store browsing in Phase 2. Boston office spaces may reopen on June 1. Each industry is subject to significant sector-specific safety standards and recommended best practices.

Previously on May 11, Governor Baker announced a four-phased approach to reopening the Massachusetts economy after non-essential businesses have been shuttered for more than seven weeks. Today, Governor Baker introduced the Commonwealth’s Plan, allowing several different sectors of business to resume operation, subject to a number of restrictions.

Each phase will last a minimum of three weeks and could last longer before moving to the next phase. If public health data trends are negative, specific industries, regions, and/or the entire Commonwealth may need to return to an earlier phase. The Commonwealth will partner with industries to draft Sector-Specific Protocols in advance of future phases.

Phase 1: Start
Until the beginning of Phase 1, only essential business were permitted to operate in the Commonwealth. For each of the three Mondays during Phase 1, additional industries will be allowed to reopen as described below, subject to mandatory safety guidelines. Essential businesses that have been permitted to remain open during the closures may remain open but must also abide by Phase 1 guidance. In addition to observing social distancing and enhanced hygiene protocols, employers are subject to sector-specific operational guidance. Below is a summary of some key points from the guidance specific to each industry. Full guidance for each sector is available here.

May 18 Openings
Beginning on May 18, hospitals and community health centers will be allowed to provide high-priority preventative care, pediatric care, and treatment for high-risk conditions. Construction and manufacturing businesses, firearms retailers and shooting ranges, and places of worship are also allowed to conduct business, but must comply with sector-specific requirements.

  • Employers in the construction business must abide by enforcement and oversight mandates, including appointing a COVID-19 officer for each site and preparing daily reports on compliance with construction-specific guidelines. For complex construction projects, a city or town may require the project owner to submit a site-specific risk analysis and COVID-19 safety plan. In all cases, construction employers must maintain a zero tolerance policy for workers reporting to work or working while sick, and employees must self-certify prior to their shift that they do not have and have not had close contact with anyone with symptoms of COVID-19 within the past 24 hours. Construction employers must follow certain sanitation and quarantine procedures if an employee who has tested positive for or shown symptoms of COVID-19 has been present in the workplace.
  • For the manufacturing sector, employers must ensure employees are observing social distancing guidelines, including mandatory face coverings and maintaining six feet of separation between workers, unless such separation would be unsafe due to the nature of the manufacturing work. Manufacturing guidance also requires employers to implement operational changes, including requiring employers to log everyone who comes on-site to enable contact tracing and to conduct cleaning and disinfection of the worksite between each shift.
  • During the first phase, places of worship may open subject to restrictive standards and outdoor services are encouraged. Otherwise, they must limit occupancy to 40 percent of the building’s maximum occupancy for services, and attendees of services must maintain six feet of distance from individuals outside of their own households. All attendees and staff must wear face coverings, and places of worship must clean and disinfect the entire site between each service.

May 25 Openings
On May 25, office spaces outside of Boston, car washes, laboratories, hair salons and barber shops, drive-in theaters, car washes, and pet grooming businesses are permitted to reopen. Retail stores may reopen for remote fulfillment and curbside pickup.

  • Laboratories will have to observe social distancing protocols, including maintaining six feet of social distance and staggering lunch and break times. Guidance recommends that employers restrict access of office workers to lab or production facilities and segment support personnel to specific areas of the facility. Laboratories must also ensure employees have access to adequate handwashing facilities and avoid sharing laboratory materials and equipment.
  • Office spaces outside of Boston will be permitted to reopen, but must limit their occupancy to no more than 25 percent of their maximum occupancy level. In an effort to minimize contact, the guidance recommends that employers establish adjusted workplace hours and shifts for workers, limit visitors and on-site service providers, and continue to utilize teleworking.
  • Car washes will be able to resume operations, but must limit washing services only to the external surfaces of the vehicles and maintain a log of workers and customers to enable contact tracing. Customers must stay in their cars throughout the car wash process, and employers should adjust workplace hours and shifts to minimize contact.
  • Hair salons and barbershops will be allowed to reopen on an appointment-only basis and limit services provided to hair services only. Waiting areas should be closed and customers must be required to wait in their cars until the time of their appointment. Hair salons and barbershops must maintain a log of employees and customers in order to allow contact tracing.
  • Pet groomers will be permitted to reopen but may not allow visitors or customers on-site, and pet drop-off must occur outside of the groomer’s facility. Pet grooming services may only be provided in mobile units, salons, or stores, and communications with clients should be had via telephone or videoconference to avoid in-person conversations.

Also on May 25, beaches, parks, drive-in theaters, some athletic fields or courts, many outdoor adventure activities, most fishing, hunting and boating, outdoor gardens, zoos, reserves and public installations may reopen. Additional health care providers will also be allowed to resume work with high-priority preventative care, pediatric care, and treatment for high-risk conditions.

On June 1, office spaces within Boston are permitted to reopen subject to the same restrictions applicable to all office spaces.

Mandatory Workplace Safety Standards
In addition to the guidance above, the Department of Public Health and the Governor’s Reopening Advisory Board have also developed Mandatory Workplace Safety Standards. These standards apply to all sectors and industries that will be open during Phase 1, and include the following:

  • Requiring face coverings or masks for all employees;
  • Establishing protocols and providing signage to ensure adequate social distancing;
  • Providing training for employees regarding social distancing and hygiene protocols;
  • Establishing a plan for how the employer will address employees who become ill from COVID-19 at work, and a return-to-work plan; and
  • Providing regular sanitization of high-touch areas, such as workstations, equipment, screens, doorknobs, and restrooms throughout the workplace.

Businesses permitted to open or remain open during Phase 1 must post several required notices in order to reopen, including a self-certified COVID-19 Control Plan, a compliance attestation poster, and employer and worker posters. Templates of these forms are available at “Essential businesses” may continue to operate, and must complete the COVID-19 Control Plan by May 25. The Reopening Advisory Board will supplement these standards with Sector Specific Safety Protocols and Best Practices that will provide more information regarding how particular industries should operate upon reopening.

Phases 2 and 3
In Phase 2, in addition to the resumption of in-store browsing for retail businesses, the following may reopen: restaurants, casinos, lodging providers, driving schools, summer day camps, and some additional personal services, subject to restrictions and some capacity limitations. In Phase 3, bars, arts and entertainment businesses, movie theaters, gyms and fitness studios, museums, small and medium sized performance venues, and some indoor recreation will be allowed to reopen subject to similar restrictions and limits on capacity.

We will continue to keep you apprised of any developments. Please reach out to any of the authors or your Seyfarth attorney for further information.