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4/23/20: Opening Up American Again

Employers Need Written Safety Policies to Prepare for the New “Normal”

There is no question that employers are dealing with questions and issues they never anticipated at the beginning of this year. Companies have suffered layoffs, furloughs and shut-downs. Employees face reduced income or unemployment. One thing is certain – a lot has changed. We continue to navigate through the evolving scientific models which purport to define when – and how – our businesses will open and operate. As those models continue to fluctuate, many suggest that developing policies is like shooting an arrow at a moving target.

While there may be some truth to that analogy, the attorneys at Pappas Wright want all of their clients to put themselves in the best position to provide the safest workplace environment possible under these circumstances. We remain dedicated to help provide those resources and safety solutions to clients in this time of need.

Currently, Governors throughout the United States are working in coalitions to determine which “phase” of reopening is most appropriate for various regions. Employers need to be tuned into that phasing process for many reasons. Most recently, employers have new obligations to develop policies in response to COVID-19. Therefore, businesses need to act now so that all appropriate safeguards are in place. In other words, employers need to begin today to prepare for our new “normal” tomorrow. The most recent guidelines from the White House and the CDC, explained in more detail below, direct employers to develop and implement written policies to address mandatory subjects related to COVID-19 in the workplace. As discussed below, these policies need to be in effect during each phase of the Opening Up America plan. Further, employers cannot ignore the implications of other rules imposed by OSHA, the Americans with Disabilities Act, wage and hour laws and many other statutory regulations that should be incorporated into a comprehensive and compliant policy. Given the recent modifications to workers’ compensation statutes, employers should also address those significant changes to limit liability through action and written policy, as well.

Opening Up America Again Guidelines

The new guidance, published by the White House on April 16, 2020 and referred to as the “Opening Up America Again Guidelines” (hereinafter referred to as the “Opening Up Guidelines”) which provide directives for States to adopt and incorporate into their regulations for businesses following COVID-19-related shut-downs or interruptions. Because many states are in different stages of the COVID-19 pandemic, special attention should be given to the differences in Phase determinations which will dictate what policies and procedures must be followed.

Many Governors have formed coalitions with neighboring states. One of the main purposes of these multistate coalitions is for state leaders to make joint reopening decisions collectively and collaboratively. Ultimately, the goal in this uniformity is to limit spread and mitigate the risk of future transmission as interstate travel increases.

As of April 22, 2020, the following coalitions have formed:

  • Midwest Coalition: Minnesota, Wisconsin, Michigan, Ohio, Illinois, Indiana, and Kentucky
  • West Coast Coalition: Oregon, Washington, California
  • Northeast Coalition: New Jersey, Connecticut, Delaware, New York, Pennsylvania, and Rhode Island
  • Southeastern Coalition: Florida, Georgia, South Carolina, Tennessee, Alabama and Mississippi

The Opening Up American Again recommendations outline sets of criteria for states to use in determining their individual “reopening” schedules. Much of the criteria is based on the status of COVID-19 cases within the state and is separated between “gating” criteria and three progressive phases of business openings. The criteria may also apply to regions (e.g. coalitions) that are reopening simultaneously.

Multi-state employers will want to develop policies that are consistent with the phasing identified in their respective states. Employers in the Quad City area face a unique situation, as well, because Governor Pritzker and Governor Reynolds are not working on the same coalition team. Therefore, it is unclear at this time if Illinois and Iowa will proceed through reopening strategies in a similar fashion with the same phasing designations or if there will be material distinctions warranting attention in COVID-19 safety policies.

Summary of Mandatory Policy Subjects

As each state works towards the reopening process, employers should ensure they have comprehensive COVID-19 safety policies and procedures in place that are compliant with the individual federal phasing requirements and that address the mandatory topics of inclusion. At a minimum, employers should establish policies addressing the following COVID-19 related issues:

  1. Social distancing and protective equipment
  2. Temperature checks
  3. Testing, isolating and contact tracing
  4. Sanitation
  5. Use and disinfection of common and “high-traffic” areas
  6. Business travel

Summary of Gating Criteria (for States or Regions)

Prior to implementing any reopening efforts, Opening America Up Again recommends that States first analyze whether they have met the “gating criteria” to begin reopening. The gating criteria addresses “flattening the curve” and other indicators of a pandemic that is losing momentum.

  1. Symptoms: downward trajectory of influenza-like illnesses (ILI) reported within a 14-day period and downward trajectory of COVID-19-like syndromic cases reported within a 14-day period;
  2. Cases: either downward trajectory of documented cases within a 14-day period or downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests); and
  3. Hospitals: treat all patients without crisis care and robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

Once a state or region has satisfied the gating criteria, it may move on to Phase 1 of reopening its economy. Opening America Up Again contains three incremental Phases which provide models for the economic reopening process.

Summary of Phases 1-3 Criteria & Guidelines

Regardless of whether the states designate in an identical manner, employers will best protect their workforces and their bottom line by developing and implementing COVID-19 safety procedures and protocols sooner rather than later. Employers who continue to operate or who plan to reopen in the future should work diligently with their human resources departments and legal counsel to adopt policies specifically tailored to their business, their industry and their individual needs. 

If you have questions regarding developing or implementing COVID-19 related safety policies or procedures, please feel free to contact a member of our firm’s COVID-19 Task Force Team for assistance.