COVID-19: On 5-18-20, Massachusetts issues Reopen Massachusetts, permitting Construction, Manufacturing and Places of Worship to reopen

On May 18th, the Governor of Massachusetts released Reopening Massachusetts, which provides for a 4-phased strategy to reopen businesses and activities in Massachusetts. The Administration also released a new “Safer At Home” Advisory, which instructs residents to stay at home unless engaging in these newly opened activities. Starting 5-18-2020, Massachusetts will begin Phase 1 of reopening, and workplaces that are permitted to open are required to follow new safety protocols and guidance.

Safer at Home Advisory:

Effective 5-18-2020, the Department of Public Health also updated the Stay at Home Advisory, replacing it with a new, “Safer at Home” Advisory. The new Safer at Home Advisory instructs residents to stay home unless they are headed to a newly opened facility or activity. It also advises those over the age of 65 and those with underlying health conditions to stay home with the exception of trips required for health care, groceries, or that are otherwise absolutely necessary.

All residents are required to wear a face covering in public when social distancing is not possible, and individuals are advised to wash their hands frequently and be vigilant in monitoring for symptoms. Restrictions on gatherings of more than 10 people remain in effect.

Phase 1 Reopening:

Based on public health metrics, manufacturing facilities and construction sites will open effective 5-18-2020 with applicable guidelines.

Places of worship will be able to open with guidelines that require social distancing and encourage services to be held outdoors.

Hospitals and community health centers that attest to specific public health and safety standards can begin to provide high priority preventative care, pediatric care and treatment for high risk patients.

Under a staggered approach, additional Phase 1 sectors of the economy will be permitted to open effective May 25 including:

• Lab space;
• Office space;
• Limited personal services, including: hair salons, pet grooming, car washes;
• Retail: remote fulfillment and curbside pick-up;

Also permitted to open on May 25 with applicable guidelines, are the following:

• Beaches;
• Parks;
• Drive-in movie theaters;
• Select athletic fields and courts;
• Many outdoor adventure activities;
• Most fishing, hunting, and boating;
• Outdoor gardens, zoos, reserves, and public installations.

Additional sectors expected to open on June 1 as part of Phase 1 include office spaces in the city of Boston with applicable guidelines.

Reopening Massachusetts In Phases:

• 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 (example: restaurant-specific protocols will be drafted in advance of Phase 2);

Success in earlier phases will refine criteria for future phases including travel, sizes of gatherings, as well as additional retail openings, lodging and accommodations, arts, entertainment, fitness centers, museums, restaurants, youth sports, and other activities.

Industry-Specific Guidance:

Businesses are not required to reopen, and may not do so if they are unable to follow safety protocols. The Baker-Polito Administration has developed industry specific guidance. Businesses are expected to implement these protocols in addition to the more general Mandatory Workplace Safety Standards.

As of May 18, materials for the sectors eligible to open in the first phase of reopening are included on the mass.gov/reopening website. Guidance for sectors opening in later phases will be posted online in advance of those phases.

In order to reopen, businesses must develop a written COVID-19 Control Plan outlining how its workplace will prevent the spread of COVID-19. Required materials are located on mass.gov/reopening, and include detailed sector-specific circulars and checklists to facilitate compliance.

Self-Certification for Businesses:

Required materials for businesses to self-certify are located on mass.gov/reopening, and include:

• COVID-19 Control Plan template, which must be retained on premises and provided in the event of an inspection;
• Compliance Attestation poster to be posted in a location visible to employees and visitors indicating a completed COVID-19 Control Plan; and,
• Other posters and signs describing rules for maintaining social distancing, hygiene protocols, as well as cleaning and disinfecting.

Businesses operating to provide Essential Services, as defined in the Governor’s March 23, 2020 Executive Order, updated on March 31, April 28, and May 15, may remain open and have until May 25, 2020 to comply with the general workplace safety standards, as well as their industry’s sector-specific protocols.

Health Care:

Effective May 18, hospitals and community health centers who attest to meeting specific capacity criteria and public health/safety standards will be allowed to resume a limited set of in-person preventative, diagnostic and treatment services.

Effective May 25, other health care providers who attest to meeting these standards may resume limited in-person services.

Services that may be performed are limited, based on the provider’s clinical judgment to high-priority preventative services, including pediatric care, immunizations, and chronic disease care for high-risk patients, and urgent procedures that cannot be delivered remotely and would lead to high risk or significant worsening of the patient’s condition if deferred.

In order for the phased in hospital expansion and non-hospital reopening, the following statewide metrics must be met:

• 30 percent of hospital ICU beds (including staffed surge capacity) must be available;
• 30 percent of total hospital beds (including staffed surge capacity) must be available.
As a precursor, health care providers must meet the following requirements to reopen or expand services, which include:

• Attesting to public health standards and specific guidelines;
• Ensuring adequate personal protective equipment is on hand, reliable supply chain and other supplies and policies in place;
• Infection control readiness (workflow, cleaning, social distancing, etc.);
• Workforce and patient screening and testing protocols; and,
• Hospitals must have ≥ 25 percent ICU and total bed capacity and reopen pediatric ICU and psychiatric beds if they had been repurposed for surge capacity.

Child Care:

Child care and summer recreation camps will reopen in a phased approach. The initial reopening plan will focus on families who have no safe alternative to group care by increasing emergency child care capacity.

Transit:

• MBTA riders are required to wear face coverings and must make efforts to distance. Riders are asked to avoid riding transit if they are exhibiting symptoms of COVID-19;
• Employers are encouraged to stagger schedules and implement work from home policies to reduce demand, especially during rush hours;
• The MBTA will take protective and preventative measures such as frequently disinfecting and cleaning vehicles and stations and providing protective supplies to workers.

Supplies:

In order to operate, all Massachusetts businesses will need to meet the Mandatory Workplace Safety Standards and relevant Sector-Specific Protocols published by the state. To support businesses, the state has developed a guide to educate business owners on what supplies are needed to return to workplaces, and a portal to connect businesses with manufacturers and distributors. These are now available to business owners via mass.gov/reopening.

While face coverings are deemed to be critical, medical grade face coverings are not necessary for non-health care workers.

Schools and Higher Education:

As previously announced, Massachusetts’ K-12 school buildings will remain closed through the end of the 2019-20 school year, with remote teaching and learning in place.

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information:

If you have any questions about this post, please contact Brad A. Molotsky, Elizabeth Mincer, Daniel Pierce or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!