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May 20, 2020

COVID-19: Eligible Massachusetts Businesses Begin Reopening Under Commonwealth's Four-Phase Plan

Up through May 17, only essential businesses, as defined in a series of executive orders, could operate in Massachusetts. On May 18, Massachusetts Governor Charlie Baker issued an executive order implementing a four-phase reopening plan to bring other Massachusetts businesses back online. Each phase is currently scheduled to last a minimum of three weeks. The duration of each phase may be extended based on public health data and, in the event of negative trends, specific industries, regions, and the entire Commonwealth may return to an earlier phase.

The Four Phases

  • Phase 1: Limited industries resume operations with severe restrictions (the “Start Phase”)
  • Phase 2: Additional industries resume operations with restrictions and capacity limitations (the “Cautious Phase”)
  • Phase 3: Additional industries resume operations with guidance (the “Vigilant Phase”)
  • Phase 4: Development of vaccines and treatments enable resumption of the “new normal” (the “New-Normal Phase.”)

More detailed guidance on the four-phase plan can be found here.

The Commonwealth provided initial guidance on industries that may reopen in Phase 1. Beginning on May 18, the first wave includes manufacturing, construction, and houses of worship. In addition, acute-care hospitals and community health centers that meet specific safety standards can begin to provide high-priority preventative care, pediatric care, and treatment for high-risk patients.

On May 25, lab and office spaces may reopen, except for office spaces located in Boston, which may reopen on June 1. The May 25 opening also includes limited personal services such as hair care, pet grooming, and car washes as well as limited retail operations, including remote fulfillment and curbside pickup.

Phase 2 reopenings may include restaurant dining areas, auto dealer showrooms, hotels, and other personal services such as nail salons. Phase 3 reopenings may include bars, gyms and other fitness facilities, museums, and movie theaters. Finally, Phase 4 is expected to allow for reopening of larger venues.

More complete guidance on the reopening schedule can be found here.

Self-Certification Requirement

Prior to reopening, businesses must meet a self-certification requirement that contains the following elements:

  • The business must have a COVID-19 control plan covering social distancing, hygiene and cleaning protocols, and a staffing plan that includes training. The Commonwealth has provided a template. The control plan does not need to be submitted for approval, but must be maintained on premises for inspection.
  • Customer-facing businesses must post a signed compliance attestation poster in an area of the premises that is visible to employees and customers.
  • All businesses must have for employees and other workers that describe the protocols for social distancing, hygiene and cleaning and disinfecting.
  • Essential businesses may remain open, but must meet the self-certification requirement by May 25. The director of labor standards is expected to establish procedures and publish self-certification forms.

Mandatory Safety Standards

In addition, all workplaces are generally subject to four categories of mandatory safety standards. These standards include:

  • Social distancing: All people in the workplace should remain at least six feet apart to the greatest extent possible. Employers must:
  1. Establish protocols to ensure employees can practice social distancing
  2. Provide signage for safe social distancing
  3. Require face coverings or masks for all employees
  • Hygiene protocols: Employers must:
  1. Provide hand-washing capabilities and adequate hand-washing supplies throughout the workplace
  2. Ensure frequent handwashing by employees
  3. Provide regular sanitation of high-touch areas such as workstations, equipment, screens, doorknobs, and restrooms
  • Staffing and operations: Employers must:
  1. Provide training for employees regarding the social-distancing and hygiene protocols
  2. Ensure employees who are displaying COVID-19 symptoms do not report to work
  3. Establish a plan for employees getting ill from COVID-19 at work as well as a return-to-work plan
  • Cleaning and disinfecting: Employers must:
  1. Establish and maintain cleaning protocols specific to the business, including disinfection of all common services at appropriate intervals
  2. Clean and disinfect when an active employee is diagnosed with COVID-19

Industry-Specific Safety Standards

With regard to each area of these standards, the Commonwealth has or will issue supplemental industry-specific safety standards that businesses must satisfy in order to reopen. These standards are highly specific and require advance preparation. For example, businesses working in office spaces must limit occupancy to 25 percent of maximum occupancy, create protocols regarding distancing and handwashing, and train employees on the business’s plan and safety information. The specific safety standards for office spaces can be found here. The specific safety standards for manufacturing can be found here.

The Commonwealth’s reopening plan is fluid and implementation will depend on public health data. Given the specificity of the plan’s requirements, businesses should start or continue their preparations to reopen in advance.

If you have any questions regarding the content of this alert, please contact Dan Blake, partner, at dblake@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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