June 12, 2020 12:00 pm
One of the states most hard-hit by the COVID-19 pandemic, Massachusetts has chosen to use public health data to formulate all phases of its reopening plan for businesses and other organizations. As fewer people test positive for the virus, as fewer die of COVID-19, more businesses will be allowed to reopen. If those numbers begin to rise again, however, restrictions will be reimposed.
Here are the key things you need to know about the Commonwealth’s plans for phased reopening:
Testing and Contact Tracing Are Key to Timing of Each Phase
Massachusetts has adopted one of the most aggressive testing protocols in the country and has established a national model for contact tracing, in collaboration with Partners in Health. Since early May, all indicators show a downward trend in positive COVID-19 test results, hospital occupancy for COVID-19 treatment, and deaths from the virus.
Phase 1 reopening began on May 18 and 25. Last weekend, Governor Baker announced a transition to Phase 2 of the reopening plan, to begin June 8.
Details for which businesses and organizations are allowed to re-open under each phase of the plan, and related conditions and restrictions, can be found here.
Written COVID-19 Control Plan is Mandatory for Reopening
Each business and organization is required to develop a written plan that specifies how it will try to prevent the spread of COVID-19. While the plan does not have to be submitted to a state agency for approval, a copy must be kept available on the premises and must be made available in the event of an inspection.
If your business or organization is “customer facing,” then you must also prominently display a signed “compliance attestation” poster that states you have completed your control plan. The poster must be located where employees and visitors can see it. In addition, all businesses and organizations must display posters and signs that describe rules for social distancing, hygiene, and cleaning and disinfecting.
Materials for the control plan and posters are available at mass.gov/reopening.
Safety Requirements for Employees and Customers Vary by Sector
Because the virus is more likely to spread indoors than outdoors, and within smaller spaces than larger ones, guidance for best safety practices varies by business sector. The level of person-to-person contact is also a factor.
Construction companies, for example, are required to designate a COVID-19 Officer for each construction site, with some exceptions; larger projects may need to submit an enhanced COVID-19 safety plan; and publicly funded constructions projects should prepare for frequent on-site inspections.
Hair salons must arrange chairs and work areas to be six feet apart, must install visual markers to help customers keep appropriate social distancing, and must require face coverings for all customers and workers.
Detailed guidelines by sector can be found here.
Federal Guidance from OSHA Is Recommended but Not Mandatory
The Occupational Safety and Health Administration (OSHA) General Duty Clause requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. The following elements constitute a violation of the General Duty Clause:
- The employer failed to keep the workplace free of a hazard to which employees were exposed;
- The hazard was recognized;
- The hazard was causing or was likely to cause death or serious physical harm;
- There was a feasible and useful method to control the hazard.
OSHA has published a guide for preparing workplaces for COVID-19. The recommendations are advisory and informational only, but they provide an excellent set of best practices for employers, including policies for employees who are sick or are caring for sick family members at home; workplace controls; and use of personal protective equipment (PPE). Download the OSHA guide here.
Federal Family Medical Leave Act has been Expanded for COVID-19
The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide employees with certain benefits for specified reasons related to COVID-19. The provisions apply through December 31, 2020. Provisions include expanded paid sick leave and family and medical leave. Requirements vary, depending on the type of employer and size of the organization. Details of the new law are available from the U.S. Department of Labor here.
Preparing to Reopen Checklist
Are you ready to bring back your employees? Here’s what you need to do, first:
1. Ensure that you can reopen in accordance with the Governor’s orders.
2. Comply with all equirements for reopening, as summarized above. For example: Do you have a Control Plan that complies with Massachusetts guidance?
3. Issue a letter to your employees, detailing COVID-19 protocols, and state clearly that an offer of work is being made, including:
- Start date
- Type of work
- Job condition
If an Employee Refuses to Return to Work
If an employee refuses to return, avoid the knee-jerk reaction to terminate his or her employment. Take the time to assess the employee’s reasons for refusal. Are there childcare issues? Underlying health risks? Required quarantine? Other non-Covid-related issues? Your employees are your most important assets. Work together to find a reasonable solution.
Remember . . .
As an employer, the Commonwealth requires that you:
- Require masks and coverings for all employees;
- Provide hand washing supplies and capabilities;
- Sanitize high touch areas, such as workstations, equipment, screens, doorknobs, and restrooms throughout the work site.
Reopening safely is everyone’s responsibility. Providing safe workplaces is critical to the health and wellbeing of all of us, and to the successful rebuilding of our nation’s economy. Your lawyers at Mountain, Dearborn & Whiting LLP stand ready to provide you with guidance to navigate through the ever-changing pandemic landscape.
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Image Credit: Mike Petrucci