Brad A. Molotsky – Page 6 – Project Development/Infrastructure/P3

June 16, 2020 by Brad A. Molotsky

University of Maryland – Energy Public Private Partnership (P-3) RFQ – due July 29th

The University of Maryland (UMD) is proposing a public private partnership (P3) to implement the NextGen Energy Program (NextGen) in order to renew and modernize the University of Maryland, College Park’s aging energy system. Under the proposed P3, UMD will contract with a private sector entity to design, engineer, finance and install energy system improvements. After improvements are completed, the entity will also manage, operate and maintain UMD’s energy systems moving forward.

The University of Maryland has more than 41,000 students, 14,000 faculty and staff, and 377,000 alumni. The main campus is located in College Park, MD.

On April 27, 2020, UMD issued a Request for Qualifications (RFQ) seeking qualifications for entities to improve, manage, operate and maintain the UMD’s central heating, cooling and electrical generation and distribution systems to ensure the UMD receives long-term reliable, efficient, sustainable and affordable energy services.

According to a Pre-Solicitation Report (PSR) dated January 31, 2020, UMD recommended two primary commercial structures for implementing the NextGen Program, either (i) a 501(c)(3) type Structure, or (ii) a Concession (Availability Payment) Structure. Under the 501(c)(3) type Structure, UMD would finance energy system capital improvements through a tax exempt entity and contract with a private sector entity to design, engineer and install those improvements and manage, operate and maintain the energy systems.

In the past, the Maryland Economic Development Corporation (MEDCO) has been involved in such projects. Under the Concession Structure, a private sector concessionaire would finance capital improvements using a mixture of equity and taxable debt, design and build those improvements and manage, operate and maintain the energy systems.

In the PSR, UMD indicated that it would consider other commercial structures and that it would consider a variety of payment models such as an availability payment for the central energy generation facility and a “base rate” model for the distribution system.

Further, UMD indicated it would also consider an incentive-based compensation model for a continuing program of energy reviews reductions in campus buildings and facilities.

The statement of qualifications are due on July 29, 2020. The PSR identifies the following additional milestone dates – deadline for receipt of proposals in March, 2021, selection of the preferred proposal in June, 2021, the approval by the Maryland Board of Public works in April – May, 2022 and a financial closing in June, 2022.

The NextGen Energy Program would commence in July, 2022, with UMD preliminarily assuming a construction period of 3 years and an operational period of 30 years, although such time frames are subject to the receipt of final proposals.

Duane Morris has a dedicated P-3 Team to help organizations plan, respond to and address RFQs/RFPs and to structure and execute your P-3 transactions. If you have any questions about this post or have interest in responding to the RFQ and would like some assistance, please contact Tom Totten, Brad A. Molotsky, Joel Ephross or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

June 11, 2020June 12, 2020 by Brad A. Molotsky

COVID-19: OSHA issues Updated Guidance on wearing Masks in the Workplace

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

The new guidance provides answers to the frequently asked questions of:

1. What are the differences between cloth face coverings, surgical masks and respirators?
Cloth face coverings:
- May be commercially produced or improvised (i.e., homemade) garments, scarves, bandanas, or items made from t-shirts or other fabrics.
- Are worn in public over the nose and mouth to contain the wearer’s potentially infectious respiratory droplets produced when an infected person coughs, sneezes, or talks and to limit the spread of SARS-CoV-2, the virus that causes Coronavirus Disease 2019 (COVID-19), to others.
- Are not considered personal protective equipment (PPE).
- Will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.
- Are not appropriate substitutes for PPE such as respirators (e.g., N95 respirators) or medical face masks (e.g., surgical masks) in workplaces where respirators or face masks are recommended or required to protect the wearer.
- May be used by almost any worker, although those who have trouble breathing or are otherwise unable to put on or remove a mask without assistance should not wear one.
- May be disposable or reusable after proper washing.
Surgical masks:
- Are typically cleared by the U.S. Food and Drug Administration as medical devices (though not all devices that look like surgical masks are actually medical-grade, cleared devices).
- Are used to protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials. In this capacity, surgical masks are considered PPE. Under OSHA’s PPE standard (29 CFR 1910.132), employers must provide any necessary PPE at no-cost to workers.¹
- May also be worn to contain the wearer’s respiratory droplets (e.g., healthcare workers, such as surgeons, wear them to avoid contaminating surgical sites, and dentists and dental hygienists wear them to protect patients).
- Should be placed on sick individuals to prevent the transmission of respiratory infections that spread by large droplets.
- Will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.
- May be used by almost anyone.
- Should be properly disposed of after use.
Respirators (e.g., filtering facepieces):
- Are used to prevent workers from inhaling small particles, including airborne transmissible or aerosolized infectious agents.
- Must be provided and used in accordance with OSHA’s Respiratory Protection standard (29 CFR 1910.134).
  - Must be certified by the National Institute for Occupational Safety and Health (NIOSH).
    - OSHA has temporarily exercised its enforcement discretion concerning supply shortages of disposable filtering facepiece respirators (FFRs), including as it relates to their extended use or reuse, use beyond their manufacturer’s recommended shelf life, use of equipment from certain other countries and jurisdictions, and decontamination.
  - Need proper filter material (e.g., N95 or better) and, other than for loose-fitting powered, air purifying respirators (PAPRs), tight fit (to prevent air leaks).
  - Require proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member.
    - OSHA has temporarily exercised its enforcement discretion concerning annual fit testing requirements in the Respiratory Protection standard (29 CFR 1910.134), as long as employers have made good-faith efforts to comply with the requirements of the standard and to follow the steps outlined in the March 14, 2020, and April 8, 2020, memoranda (as applicable to their industry).
  - When necessary to protect workers, require a respiratory protection program that is compliant with OSHA’s Respiratory Protection standard (29 CFR 1910.134). OSHA consultation staff can assist with understanding respiratory protection requirements.
  - FFRs may be used voluntarily, if permitted by the employer. If an employer permits voluntary use of FFRs, employees must receive the information contained in Appendix D of OSHA’s Respiratory Protection standard (29 CFR 1910.134).
2. Are employers required to provide cloth face masks to workers? NO. Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.
3. Should workers wear cloth face masks while at work? YES
4. If workers wear cloth face masks at work, should employers still look to ensure some level of social distancing? YES
5. How am I supposed to keep my cloth mask clean? see attached suggested procedures from the CDC – https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html
6. Are surgical masks or cloth face masks acceptable respiratory protection in the construction industry when respirators would be need but are not available?
NO. Employers should not be using surgical masks or cloth face coverings when respirators are needed.

In general, employers should always rely on a hierarchy of controls that first includes efforts to eliminate or substitute out workplace hazards and then uses engineering controls (e.g., ventilation, wet methods), administrative controls (e.g., written procedures, modification of task duration), and safe work practices to prevent worker exposures to respiratory hazards, before relying on personal protective equipment, such as respirators. When respirators are needed, OSHA’s guidance describes enforcement discretion around use of respirators, including in situations in which it may be necessary to extend the use of or reuse certain respirators, use respirators beyond their manufacturer’s recommended shelf life, and/or use respirators certified under the standards of other countries or jurisdictions.
For more information on this topic and the actual FAQs please go to https://www.osha.gov/SLTC/covid-19/. Note that the OSHA guidance is NOT a standard or a regulation, rather it is advisory in nature and is intended to provide direction from OSHA.

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, Delphine O’Rourke, Sharon Caffey, Elizabeth Mincer or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

June 9, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: NJ Continues Moves to Re-Open, increasing Permitted Gathering Numbers

On June 9th, NJ Gov. Phil Murphy lifted New Jersey’s stay-at-home order and will allow for bigger social gatherings.

– Indoor Gatherings – the limit on indoor gatherings was raised to 25% of capacity or 50 people total; people are required to wear face coverings for these indoor gatherings

– Outdoor Gatherings – the limit on outdoor gatherings was raised from 25 to 100; furthermore, the limit on outdoor gatherings will rise to 250 on June 22nd and 500 on July 3rd

The increase to 500 on July 3rd is intended to permit outdoor graduations to resume in July, as long as fewer than 500 people are gathered together outside.

Exceptions will be granted for outdoor religious services and First Amendment activities, such as protests.

All outdoor recreational and entertainment may resume except for amusement parks, water parks and arcades.

Governor Murphy also announced on the 8th that pools will be permitted to reopen per announced schedules.

For Further Information:

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

Be well and stay safe!

June 4, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: CDC Releases Guidance for Building Owners – Shared Office Space Alignments May Be A Thing of the Past

The Center for Disease Control (CDC) recently released guidance to building owners that would eliminate much of the shared office space alignments we have seen over recent years in many buildings. https://www.cdc.gov/coronavirus/2019-ncov/php/building-water-system.html

Among other steps, the CDC suggested that:

1. Desks – should be placed 6 feet apart if possible, and if not, employers ought to use plastic shields to separate desks.

2. Common Areas – there should be no seating in the common areas of the building and the tenant suits and amenities such as refrigerators, microwaves, multiple-serve coffee pots and water coolers, should be eliminated to enable better social distancing and less high touch areas. Multi Serve Coffee service should be replaced by single-serve items.

3. Air Flow – Open windows are recommended for fresh air, but if that is not possible, office building management should consider increasing air filtration or having the HVAC systems draw in as much outdoor air as possible, as much as 100%. MERV 13 filters or HEPA filters provide a means to capture up to 99% of air borne viruses.

4. Office Interiors – Cleaning frequently touched surfaces, including keyboards, telephones, handrails and doorknobs (the CDC lists cleaning products that are good for inactivating viruses). https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

5. Workers – the CDC suggests that workers should also undergo temperature checks, wear masks and wash their hands often. The agency stresses the importance of letting all workers affected by the changes know what is going on, including management and other staff, but also relief employees, janitorial staff and maintenance crews.

Additional information can be found in the Building Owners and Managers Association (BOMA) guide entitled “Getting Back to Work-Preparing Buildings for Reentry,” https://boma.informz.net/BOMA/data/images/Getting%20Back%20To%20Work%20Preparing%20Buildings%20for%20Re%20Entry.pdf

Note that many State governments (e.g., New York) have issued their own office reopening guidelines that are similar to the CDC guidance so be sure to check there as well.

As we start to focus on getting back into the office, my sense is the configurations we have seen over the last 5-10 years are about to undergo some serious modifications. Some will be temporary and others, likely will be here to stay.

For Further Information:

If you have any questions about this post or real estate related questions, please contact Brad A. Molotsky or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

June 1, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: NJ Issues Additional Re-Opening Guidance – Child Care, Horse Racing, Youth Sports, Summer Camps, Non-Essential Retail, Salons and Restaurants – Executive Order 149

NJ Gov. Phil Murphy signed Executive Order 149 that has eased restrictions on child-care centers, horse racing, organized youth and other non-professional sports, and summer camps for kids.

Child Care:

o Detailed guidance for licensed child-care centers was issued.
o Child-care centers can reopen their doors to the children of non-essential workers on June 15.
o Centers that planned to open needed to alert the state and file an attestation that they would follow the state guidelines for safety and social distancing.
o Inspectors from the department will be visiting centers that reopen.

• Gov. Murphy also announced the administrative order allowing horse racing in New Jersey will resume on Monday, June 1.

o The grandstands at the state tracks will remain closed.
o Betting will take place online only.

• Youth day camps (including municipal summer recreation programs) can open July 6.

o Similar safety and social distancing requirements are being formulated by state officials and will be in place in coming weeks.
o Sleep-away and residential camps remain prohibited under the new order.

• Organized youth-sport practices can resume June 22.

o The order extends to high school and college sports programs.
o Activities must be conducted outside and for now must be limited to non-contact drills.
o Murphy said no-contact rules and other restrictions will be revisited on an ongoing basis.

• The Governor said that the 10-person limit on people who can gather inside a house of worship in New Jersey will be raised in advance of services conducted on June 12.
o He did not, however, specify what the revised limit would be.
o Murphy said state officials were working with faith leaders to establish guidance to insure congregant safety.

On Monday, June 1st, the Governor followed up EO 149 saying that he will allow restaurants to reopen for outdoor dining and “non-essential” retail to allow indoor customers, starting on June 15.

Personal care operations, such as salons and barbershops, can reopen on June 22, while gyms and health clubs will be able to reopen at some point in the coming weeks on a limited basis.

For Further Information:

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

Be well and stay safe!

May 29, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: New PPP Flexibility Act passed in the House of Representatives which focuses on Small Businesses, Hospitality and Restaurants

The new Paycheck Protection Flexibility Act (H.R. 7010) which focuses on small businesses and restaurants in particular has passed the House of Representatives.

The bipartisan Paycheck Protection Flexibility Act, was introduced last week by Reps. Dean Phillips, D-Minnesota and Chip Roy, R-Texas, and, is designed to extend the 8-week period under which loan recipients could spend the PPP money to 24 weeks while helping correct other provisions that would provide more flexibility to small businesses in the hospitality realm.

Many hospitality businesses have high overhead costs and low worker salaries, and, as such, will likely struggle to rehire their employees as their businesses have not reopened yet or, if they have reopened, have reopened with a smaller staff due to social distancing requirements for their customers. Additional challenges are presented as some former employees are seeing more income from enhanced unemployment benefits which will also make it difficult to rehire them.

A bipartisan group has already introduced a companion bill in the Senate. Its backers include Sens. Cory Gardner, R- Colorado, Tim Kaine, D-Virginia, Thom Tillis, R-North Carolina, Steve Daines, R-Montana, Angus King, I-Maine, and Debbie Stabenow, D-Michigan.

The Paycheck Protection Flexibility Act would:

• Extend the “covered period” under which small businesses can spend the loan proceeds from 8 weeks to 24 weeks or until Dec. 31, 2020.

• Expand the 25% cap to use PPP funds on non-payroll expenses, such as rent, mortgage interest and utilities, to 40% of the total loan. Currently, small businesses must use at least 75% of the loan for payroll expenses to get maximum forgiveness, but under the bill that would change to 60% to get maximum forgiveness.

• Give small businesses more time to rehire employees or to obtain forgiveness for the loan if social distancing guidelines and health-related actions from the CDC or other agencies prevented the business from operating at the same capacity as it had before March 1.

• Allow small businesses to take a PPP loan and also qualify for a separate, recently enacted tax credit to defer payroll taxes, currently prohibited to prevent “double dipping.”

• Remove the limits on loan forgiveness for small businesses that were unable to rehire employees, hire new employees or return to the same level of business activity as before the virus.

• Extend the loan terms for any unforgiven portions that need to be repaid from 2 years to 5 years, at 1% interest.

• Extend the period for when a business can apply for loan forgiveness, from within 6 months to within 10 months of the last day of the covered period, before it must start making interest and principal payments. Under the new bill, PPP loan interest and payment of principal and fees will be deferred until the loan is forgiven by the lender.

For Further Information:

If you have any questions about this post, please contact Brad A. Molotsky, Sandra Stoneman and Nanette Heide or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

May 26, 2020May 27, 2020 by Brad A. Molotsky

COVID-19: Philadelphia follows PA lead and Begins Re-Opening Process for Restaurants effective May 26, 2020; Lifts Stay at Home Order effective June 5th

As of May 26, 2020, Philadelphia Mayor Jim Kenney amended his earlier business closure and stay-at-home orders and will now permit up to 10 people to line up to order at restaurants and food establishments. Dine-in service is still prohibited, and face coverings and social distancing guidelines are required.

The amendment follows Gov. Tom Wolf’s announced plans last week to move all Pennsylvania counties, including the five-county Philadelphia region, to the yellow phase of reopening and lift stay-at-home orders by June 5.

The yellow phase calls for telework to continue where possible, but allows for businesses to reopen with social distancing and other health and safety guidelines in place. Schools remain closed for in-person instruction, as does indoor recreation, gyms, health and fitness centers and entertainment venues. The yellow phase also allows for the reopening of in-person retail.

A copy of Mayor Kenney’s Order can be found here – Business closure revision 5-26

Philadelphia has begun to relax restrictions on restaurants and food vendors, recently permitting the sale of to-go cocktails.

The City of Philadelphia will release guidance and planning for business re-openings later this week.

For Further Information:

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

Be well and stay safe!

May 19, 2020 by Brad A. Molotsky

COVID-19: PA permits reopening of Real Estate Businesses per Published Guidelines

On May 19th, Governor Tom Wolf announced that businesses and employees in the real estate industry may conduct limited business-related activities statewide and provided guidance for this industry to operate in red phase and yellow phase counties.

Previously, businesses and employees in the real estate industry were permitted to conduct limited in-person activities in counties in the yellow phase of the commonwealth’s phased reopening plan.

The real estate guidance https://www.governor.pa.gov/wp-content/uploads/2020/05/20200519-Real-Estate-Guidance.pdf requires businesses and employees to follow all applicable provisions of the Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public, which includes provisions requiring that every person present at a work site, business location, or property offered for sale, wear masks/face coverings, and provisions requiring the establishment of protocols for execution upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19.

All in-person activities are supposed to be scheduled and limited to no more than the real estate professional and 2 people inside a property at any time, exercising appropriate social distancing.

When conducting settlements/closings the guidance suggests utilizing remote notary, powers of attorney or the exchange of contract documents electronically or by mail wherever possible. Where it is not possible to conduct settlement/ closing via remote notary or POA, attendance in-person is required to be limited to required signatories and their legal counsel or real estate professional only, and steps to preserve social distancing must be followed to the maximum extent possible.

Businesses and employees are also encouraged to provide sellers with relevant safety information and protocols for cleaning and sanitizing properties; utilize electronic marketing as much as possible; provide all individuals at an in-person activity with a verbal health screening; stagger scheduling of property showings; avoid physical contact with the property by staging in advance to prevent the need for interaction with items like lights, interior doors, drapes and blinds; and minimize time spent in the property by having discussions away from the property via remote means.

The Governor also vetoed House Bill 2412, stating that the Bill did not provide enough safety protocols for the COVID-19 public health crisis. Further, the legislation would have placed restrictions on municipalities related to property transfers; specifically, it would have eliminated a municipality’s ability to issue use and occupancy permits and conduct safety inspections, which are conditions of a property transfer.

To read the Governor’s Order – https://www.governor.pa.gov/wp-content/uploads/2020/05/20200519-TWW-Business-Closure-Amendment.pdf

For Further Information:

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

Be well and stay safe!

May 19, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: NJ continues Reopening Program permitting additional Outdoor Activities and Businesses to Open on Friday 5-22-20 – Executive Order 147

Governor Murphy signed Executive Order No. 147 (“EO”), allowing certain outdoor activities at recreational businesses, including archery ranges, batting cages, golf driving ranges, horseback riding, shooting ranges, and tennis clubs as well as community gardens to open with required social distancing measures in place. The EO takes effect on Friday, May 22 at 6:00 a.m.

Outdoor Recreational Businesses: To limit physical interactions, the EO requires outdoor recreational businesses that reopen to limit capacity to 10 people at one time and implement reasonable restrictions that include:

• Using electronic or telephone reservation and payment systems;
• Prohibiting impermissible gatherings;
• Installing physical barriers between employees and customers;
• Limiting the use of equipment to one person;
• Implementing social distancing measures in commonly used areas, including demarcation and signage;
• Infection control and hygiene practices;
• Providing sanitization materials to employees;
• Frequent sanitization of high-touch areas; and
• Limiting occupancy of restrooms.

Community Gardens: Governor Murphy’s EO permits community gardens to reopen so long as they comply with the same restrictions implemented at parks under Executive Order No. 133.

All-Terrain Vehicle and Dirt Bike Rental Businesses: The Order allows all-terrain vehicle and dirt bike rental businesses to reopen to the public for “curb-side” pickup. Such businesses must comply with the same restrictions required for non-essential retail businesses.

Golf Courses: The EO relaxes four of the restrictions on golf courses, allowing them to expand tee-times to four players, allow the use of forecaddies, offer club and equipment rentals, and reopen restrooms with disinfecting and hygiene protocols in place.

The EO also recommends, but does not order, that people wear a face covering while in public settings at outdoor recreational businesses and community gardens when social distancing measures are difficult to maintain.

The EO further clarifies that amusements parks and arcades, and other places of public amusement located at these businesses remain closed, including places of public amusement that are located at a place otherwise authorized to be open by any executive order issued after March 21, 2020, such as a boardwalk.

For Further Information:

If you have any questions about this post, please contact Brad A. Molotsky, Paul Josephson, Jimmy Greenberg and Elizabeth Mincer or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

May 18, 2020June 11, 2020 by Brad A. Molotsky

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.

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!