Client Update – The Reopening of the Economy.

Employers across the country are looking towards a time when business operations can return to pre COVID-19 operations. While there is no clear guidance as to when this will occur, many states are beginning to formulate plans to relax workplace restrictions.

The following is an update as to the status of economy reopening in Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, New Jersey, North Carolina, Florida and Michigan.

Massachusetts:

On May 11, 2020 Massachusetts Governor Baker announced a four phase approach to opening the Massachusetts economy. While the full details of each phase have yet to be released, Governor Baker labeled them One: Start; Two: Cautious; Three: Vigilant; and Four: New normal.

Phase One: Will include industries that are more naturally set up to have little face to face customer interactions with certain conditions.

Phase Two: Will include industries with more face-to-face interaction with certain restrictions.

Phase Three: Will allow for loosening of the restrictions and conditions from the preceding phases based on public health data.

Phase Four: called the “New Normal” occurs when “we can really begin to put this virus in the rear-view mirror.”

A Reopening Advisory Board that has been tasked with producing a plan to the Governor by May 18. The Reopening Advisory Board is made up of public health officials and business leaders who will advise on strategies to reopen the economy in phases based on health and safety metrics.

The latest updates on the reopening of the economy in Massachusetts may be found at: https://www.mass.gov/info-details/covid-19-updates-and-information.

Connecticut:

Connecticut Governor Lamont outlined a four-phase plan to lift workplace restrictions. While an official plan has yet to be released, the outline for Phase One is as follows:

Phase One: The following industries will restart on-site operations with restrictions on May 20, 2020.

• Restaurants. Outdoor seating only and bar areas will remain closed.
• Retail.
• Offices. Employers are encouraged to permit employees to work remotely where possible.
• Hair and nail salons.
• Museums and zoos. Outdoor areas only.
• Outdoor recreation.
• University research programs.

Information regarding Phases Two through Four is expected to be released in the coming weeks. The latest updates on the reopening of the economy in Connecticut may be found at: https://portal.ct.gov/Coronavirus.

Rhode Island:

Rhode Island Governor Raimondo unveiled the “Reopen RI” framework for reopening the economy. Guidance on the first three phases has been released and began on May 9.

Phase One:

• Offices: Everyone who can work from home should continue to work from home. Employees of office-based businesses who need to go to the office may do so on a very limited basis for reasons such as critical meetings (provided that social distancing and other rules are carefully followed). Employees may pick up a file or print a document at the office if needed.
• Retail: Retailers may reopen for in-store pickup and limited browsing. No more than one customer per 300 square feet in the store at any one time. Contactless payment is encouraged as an option. Checkout areas should have see-through barriers between employees and customers.
• Preparations underway for limited reopening – including restricted outdoor dining at restaurants.
• Businesses must prepare a COVID-19 Control Plan template and submit a checklist indicating they have reviewed the applicable business guidelines.

Phase Two: Specifics are still unknown, however, more businesses will reopen and restrictions will be further relaxed. Offices will ease capacity restrictions allowing more people to come in, but many people will still work from home.

Phase Three: Details will follow. Offices, restaurants, retail and other businesses will lift some of the tightest restrictions to allow more people in at one time, but will need to operate under long term safety guidelines. More people will return to the office, but working remotely is still encouraged.

The latest updates on the reopening of the economy in Rhode Island may be found at:https://health.ri.gov/covid/.

New York:

In New York State, the epicenter of the pandemic, Governor Cuomo has outlined “Moving New York Forward”, a regional four phase plan to reopen the state economy, based upon industry and upon meeting certain health care related metrics after May 15, 2020. Unless these metrics are met, businesses in those regions will be restricted to essential services until at least through June 6, 2020, the current expiration date of the “New York State on PAUSE” executive order issued by the Governor to assure uniform safety for everyone.

The ten state regions are: Western New York, Finger Lakes, Southern Tier, Central New York; Mohawk Valley; North Country; Capital Region; Mid-Hudson; New York City; and Long Island.

Before a region may begin and maintain a phased reopening:

1. On a 3-day rolling average, there must be a 14-day decline in COVID-19 hospitalizations or, for regions with few COVID-19 cases, COVID-19 cases cannot exceed 15 new total cases;
2. On a 3-day rolling average, there must be a 14-day decline in COVID-19 deaths or, for regions with few COVID-19 cases, COVID-19 deaths cannot exceed 5 new deaths;
3. On a 3-day rolling average, there must be fewer than 2 new COVID-19 patients admitted to the hospital per 100,000 residents per day;
4. The region must have at least 30% total hospital beds available after elective surgeries resume;
5. The region must have at least 30% total ICU beds available after elective surgeries resume;
6. Hospitals in the region must have at least 90 days of personal protective equipment stockpiled;
7. The region must have the capacity to conduct 30 diagnostic tests for every 1,000 residents per month (and must maintain an appropriate number of testing sites to accommodate its population and must fully advertise where and how people can get tested);
8. The region must have a baseline of 30 contact tracers for every 100,000 residents, and additional tracers based on the projected number of cases in the region; and
9. The region must present plans to have rooms for people who test positive for COVID-19, but cannot self-isolate.

Once a region meets these metrics (only three upstate regions, Southern Tier, Mohawk Valley and the Finger Lakes, currently meet all the requirements necessary to reopen safely and securely on May 15), business in the region will gradually reopen in the following successive staged phases (with at least two weeks in between phases):

Phase One: Construction, Manufacturing, Retail – curbside pickup; Wholesale Trade; and Agriculture, Forestry, Fishing and Hunting.

Phase Two: Professional services; Retail; Administrative Support; and Real Estate/ Rental & Leasing.

Phase Three: Restaurant/ Food Services; and Hotels and Accommodations.

Phase Four: Arts, Entertainment and Recreation; and Education.

To reopen, businesses must have a plan in place to:

• Protect employees and consumers;
• Make the physical work space safer;
• Implement processes that lower the risk of infection in the business;
• Adjust workplace hours and shift design as necessary to reduce density in the workplace;
• Enact social distancing protocols;
• Restrict non-essential travel for employees;
• Require all employees and customers to wear masks if in frequent contact with others;
• Implement strict cleaning and sanitation standards;
• Enact a continuous health screening process for individuals to enter the workplace;
• Continue tracing, tracking and reporting of cases; and
• Develop liability processes.

Other than the above, there are few specifics on when businesses can expect to reopen and under what conditions. In New York City, the Mayor on May 11 commented that the lockdown for the city could end in June if certain downward trends continue. Also, on May 11, Governor Cuomo announced that landscaping and gardening; outdoor, low-risk recreational activities such as tennis; and drive-in movie theaters, will be ready to reopen statewide on May 15.

The latest updates on the reopening of the economy in New York may be found at: https://coronavirus.health.ny.gov/home.

Pennsylvania:

On April 22, 2020, Pennsylvania Governor Wolf announced the following color-coded three-phase approach for use in determining when counties and/or regions in Pennsylvania would be ready to begin easing some restrictions on work, congregate settings, and social interactions. Decisions are made based on per-capita virus counts, ability to do contact tracing and testing, and population density. All counties and regions began in the Red Phase. On May 8, 24 counties in northwest and north-central Pennsylvania moved into the Yellow Phase. On May 15, an additional 13 counties in southwestern Pennsylvania are scheduled to also enter into the Yellow Phase. The remaining 30 Counties of the state (including all of eastern Pennsylvania) remain in the Red Phase, with no date yet set to move to the Yellow Phase.

Red Phase (the most restrictive phase with strict social distancing; only life-sustaining businesses are open; school closures, and building safety protocols).

Work & Congregate Setting Restrictions:

• Life Sustaining Businesses Only
• Congregate Care and Prison Restrictions in Place
• Schools (for in-person instruction) and Most Child Care Facilities Closed

Social Restrictions:

• Stay at Home Orders in Place
• Large Gatherings Prohibited
• Restaurants and Bars Limited to Carry-Out and Delivery Only
• Only Travel for Life-Sustaining Purposes Encouraged

To more from the Red to Yellow Phase, certain metrics must be met, including:

• A target goal of fewer than 50 new confirmed COVID-19 cases over 14 days per 100,000 residents;
• Enough testing available for individuals with symptoms and target populations such as those at high risk, health care personnel, and first responders;
• Robust case investigation and contact tracing infrastructure in place to facilitate early identification of cluster outbreaks and to issue proper isolation and quarantine orders; and
• Identification of high-risk settings including correctional institutions, personal care homes, skilled nursing facilities, and other congregate care settings, and assurance that facilities have adequate safeguards in place such as staff training, employee screening, visitor procedures and screening, and adequate supplies of Personal Protective Equipment to support continued operations.

Yellow Phase (some restrictions on work and social interaction will ease while others, such as closures of schools, gyms, and other indoor recreation centers, hair and nail salons, as well as limitations around large gatherings, remain in place).

Work & Congregate Setting Restrictions:

• Telework Must Continue Where Feasible
• Businesses with In-Person Operations Must Follow certain Business and Building Safety Orders
• Child Care Open Complying with Guidance
• Congregate Care and Prison Restrictions in Place
• Schools Remain Closed for In-Person Instruction

Social Restrictions:

• Stay at Home Order Lifted for Aggressive Mitigation
• Large Gatherings of More Than 25 Prohibited
• In-Person Retail Allowable, Curbside and Delivery Preferable
• Indoor Recreation, Health and Wellness Facilities and Personal Care Services (such as gyms, spas, hair salons, nail salons and other entities that provide massage therapy), and all Entertainment (such as casinos, theaters) Remain Closed
• Restaurants and Bars Limited to Carry-Out and Delivery Only
• All businesses must follow CDC and DOH guidance for social distancing and cleaning

Details on target metrics to meet before moving from the Yellow Phase to the Green Phase are expected to be announced in the upcoming weeks.

Green Phase (most restrictions are eased by lifting the stay at home and business closure orders to allow the economy to strategically reopen while continuing to prioritize public health).

Work & Congregate Setting Restrictions:

• All Businesses Must Follow CDC and PA Department of Health Guidelines

Social Restrictions:

• Aggressive Mitigation Lifted
• All Individuals Must Follow CDC and PA Department of Health Guidelines In-Person Retail Allowable, Curbside and Delivery Preferable

The latest updates on the reopening of the economy in Pennsylvania may be found at: https://www.pa.gov/guides/responding-to-covid-19/#StayatHomeOrder.

New Jersey:

On April 27, 2020, Governor Murphy announced “The Road Back: Restoring Economic Health Through Public Health”, consisting of the following six key principles and metrics which will guide New Jersey in lifting the stay-at-home restrictions that have been in place in the State since March 21, 2020:

1. Demonstrate sustained reductions in new COVID-19 cases and hospitalizations (including through 14-day trend lines showing appreciable and sustained drop in cases, hospitalizations, and other metrics)
2. Expand testing capacity (by at least double current diagnostic testing capacity).
3. Implement robust contact tracing.
4. Secure safe places and resources for isolation and quarantine (which will include plans to provide individuals who do test positive in the future with a safe and free place to isolate and protect others from COVID-19).
5. Execute a responsible economic restart (which will include a plan for a methodical and strategic return to work based on level of disease transmission risk and essential classification; and continuation of social distancing measures where feasible and appropriate).
6. Ensure New Jersey’s resiliency (which will include preparing for the possibility of a resurgence; ensuring hospitals, health care systems, and other health delivery facilities have inventories of personal protective equipment and ventilators; building a stockpile of personal protective equipment and ventilators in New Jersey; and creating a playbook for future administrations for the next pandemic).

Governor Murphy has indicted that this week he will be announcing plans for increased testing, contact tracing, and ‘hard dates’ (assuming the curves keep going in the right direction) to restart the reopening process in New Jersey. However, few other details are know at this time.

The latest updates on the reopening of the economy in New Jersey may be found at: https://covid19.nj.gov/.

North Carolina:

North Carolina Governor Cooper has adopted a three phase approach to lifting restrictions in North Carolina, based upon COVID-19 data from testing, tracing and trends.

Phase One: Phase One went into effect at 5 pm on May 8 and will stay in place until 5pm on May 22. Under Phase One:

• The distinction between essential and non-essential businesses was removed.
• Most retail businesses may reopen provided customer occupancy is limited to 50%, and certain social distancing and cleaning protocols are followed.
• Child care centers may reopen for working parents or those looking for work.
• All business are, among other things, encouraged to promote telework, social distancing and hygiene, to limit non-essential travel and face to face meetings to no more than 10 workers, to make accommodations for workers at high risk of severe illness from COVID-19, actively encourage sick employees to stay home and provide support to do so by providing sick leave policies, follow CDC guidance if an employee has been diagnosed with COVID-19, and provide education on COVID-19 strategies for staff.

However the following businesses shall remain closed during Phase One:

• Restaurants remain closed for dine-in serves, but may continue to stay open to provide drive-through, take-out and delivery.
• Personal care and grooming businesses, including barber shops, hair salons, and nail salons, remain closed.
• Health clubs, fitness centers, gyms, and other indoor exercise facilities remain closed, including yoga studios, martial arts facilities, indoor trampoline and rock climbing facilities.
• Entertainment facilities remain closed, including performance venues, movie theaters, bowling alleys, and indoor and outdoor pools.

Phase Two: Phase Two will begin at least two to three weeks after Phase One. During Phase Two, limited reopening of restaurants, bars, gyms, personal care facilities and other businesses that can follow certain safety protocols including the potential need to reduce capacity.

Phase Three: Phase Three will begin at least four to six weeks after Phase Two. During Phase Three, increased capacity at restaurants, bars, other businesses, houses of worship, entertainment venues, and other business will be allowed.

However, if there is a spike in COVID-19, the state may temporarily tighten certain restrictions.

The latest updates on the reopening of the economy in North Carolina may be found at:https://www.nc.gov/covid19.

Florida:

Florida will follow a three phased approach to reopening the state economy. Florida Governor DeSantis has said that it is his hope that the phases will last weeks, and not months. Also, local governments are permitted to adopt stricter requirements.

Phase One: Under Phase One, certain businesses were allowed to reopen throughout the state on May 4, 2020, with the exception of Broward, Miami-Dade, and Palm Beach counties (which will be considered in consultation with local leadership, as such counties account for the majority of COVID-19 cases in the state). Palm Beach County, after consultation with the state, began Phase One on May 11. Under Phase One:

• Restaurants may now offer outdoor seating with six feet between tables and indoor seating at 25% building capacity.
• On-site sale and retail businesses may operate at 25% building capacity.
• Medical services, including elective procedures, surgical centers, office surgery centers, dental offices, orthodontic offices, endodontic office and other health care practitioners’ offices may fully re-open under certain conditions.

Effective May 11, 2020, barbershops, cosmetology salons, and cosmetology specialty salons may reopen with enhanced safety protocols (one customer at a time, by appointment only, with at least 15 minutes in between customers for proper disinfecting, and the licensed provider must wear a face mask while providing personal services), except in Miami-Dade and Broward Counties.

However, bars, pubs and nightclubs which derive more than 50% of gross revenue from the sale of alcoholic beverages shall continue to suspend the sale of alcoholic beverages for on-premises consumption; gyms and fitness centers shall remain closed; and the prohibition on vacation rentals remains in effect.

In Miami-Dade County, the Mayor has announced May 18, 2020, as the tentative target date for a phase one reopening of certain sectors of Miami-Dade County. The Mayor of Broward County has indicated that Broward County is at the time tracking with Miami-Dade County on the date to reopen certain businesses. Broward County is considering the reopening, under certain circumstances and limitations, of retail shops, restaurants, nail salons, hair salons, barbershops and drive-in movie theaters. Specifics for Miami-Dade County haven’t been announced yet, but it is anticipated that restaurants and certain retail businesses will be permitted to reopen under certain circumstances.

Phase Two: Phase Two will take effect once the Governor determines it is suitable to continue re-opening and after fully considering medical data in consultation with state health officials (i.e., when there is no evidence of a rebound or any kind of resurgence in COVID-19 cases). Under Phase Two:

• All employers should continue to encourage teleworking where practical, and should begin implementing plans for employees to return to work in phases.
• Bars, pubs and nightclubs which derive more than 50% of gross revenue from the sale of alcoholic beverages should operate at 50% of building capacity with an emphasis on diminished standing room capacity and prioritizing outdoor service.
• Restaurants and food establishments should operate at no more than 75% of building capacity, with appropriate social distancing and a minimum of 6 feet separating parties.
• Gyms and fitness centers shall operate at no more than 75% of building capacity, with adherence to strict social distancing and sanitation protocols.
• Large venues (movie theaters, concert halls, auditoriums, bowling alleys, arcades, playhouses and casinos) should operate at no more than 75% occupancy.
• Large spectator sporting events should limit occupancy of venue to 50% of building capacity.
• Theme parks may consider reopening with capacity limits.
• Vacation rentals should be open and operate for in-state (Florida resident) reservations only (and with rental prohibition to persons travelling internationally or from a state or locality with a substantial community spread of COVID-19; and with 72 hours between guest check-ins for effective cleaning and disinfecting).
• Personal services (cosmetology salons, barber shops and nail salons) should operate with occupancy limited to 75% of building capacity.
• Retail business should operate at no more than 75% of building capacity.

Phase Three: Phase Three will begin after the successful conclusion of Phase Two (where there is no evidence of a rebound or resurgence of COVID-19 cases and certain benchmarks are satisfied). Under Phase Three:

• Employers should resume unrestricted staffing of worksites and implement the final phasing in of employees returning to work (with teleworking to be considered for vulnerable populations).
• Bars, pubs, nightlife, restaurants, gyms and fitness centers, and large venues (movie theaters, concert halls, auditoriums, bowling alleys, arcades, playhouses and casinos) may return to full occupancy, by maintaining adequate sanitation practices during all hours of operation.
• Large sporting events should consider reducing occupancy; theme parks may return to normal operating procedure.
• Vacation rentals should resume normal operating procedures, but should continue to thoroughly clean and disinfect the property between rentals.
• Personal services (cosmetology salons, barber shops and nail salons) should operate under full capacity, but should consider certain mitigation measures.
• Retail business should operate at full capacity, but should continue to maintain adequate sanitation practices.

The latest updates on the reopening of the economy in Florida may be found at: https://floridahealthcovid19.gov/plan-for-floridas-recovery/.

Michigan:

Michigan Governor Whitmer on May 7, 2020 adopted the MI Safe Start plan which will incrementally reopen nine types of work places across eight regions of the state.

Reopening is to occur in phases based on disease progression.

Phase One: Uncontrolled Growth. Only work necessary to protect or sustain life is permitted.

• Retail: limited to grocery stores and critical retail (e.g. pharmacy).
• Restaurants & Bars: takeout, delivery, and drive-through only.
• Manufacturing: critical manufacturing only.
• Construction: Only permitted for critical infrastructure projects.
• Food and Agriculture: Permitted.
• Offices: closed to all non-critical workers.
• Education & Child Care: remote learning K-12 and higher education; childcare for critical workers.

Phase Two: Persistent Spread. There are still high case levels, but growth rate might gradually decrease. Phase Two has the same restrictions on business as Phase One.

Phase Three: Flattening. This phase occurs when daily new cases and deaths remain relatively constant over a time period. During this phase, non-critical businesses that pose a lower risk of infection are able to open with increased safety measures.

• Retail: same as Phase One with the addition of curbside or delivery for nonessential retail.
• Restaurants & Bars: same as Phase One.
• Manufacturing: permitted with additional safety measures and guidelines.
• Construction: permitted with additional safety measures and guidelines.
• Food and Agriculture: same as Phase One.
• Offices: closed to all non-critical workers.
• Outdoor work: permitted with additional safety measures and guidelines.

Phase Four: Improving. This phase occurs when the number of new deaths and deaths has fallen for a period of time, but overall levels are still high.

• Retail: permitted with additional safety measures and guidelines (e.g. limited capacity).
• Restaurants & Bars: same as Phase One.
• Manufacturing: same as Phase Three.
• Construction: same as Phase Three.
• Food and Agriculture: same as Phase One.
• Offices: Open (remote work still required where feasible).
• Outdoor work: same as Phase Three.

Phase Five: Containing. This phase occurs when new cases and deaths continue to decrease for an additional period of time and the number of active cases has reached a point where infection from other members of the community is less common.

• Retail: same as Phase Four.
• Restaurants & Bars: Available for dine-in with additional safety measures and guidelines.
• Manufacturing: same as Phase Three.
• Construction: same as Phase Three.
• Food and Agriculture: same as Phase One.
• Offices: Open (remote work still required where feasible).
• Outdoor work: same as Phase Three.

Businesses allowed to open during Phases One through Five are required to create a response plan and implement new infection control measures such as temperature screening of employees and staggering work shifts to ensure social distancing. Testing and contact tracing to isolate infected workers will be essential moving forward.

Phase Six: Post-Pandemic. Reaching this phase would mean that community spread is not expected to return, because of sufficient community immunity and the availability of treatment. Because of this, the number of infected individuals falls to nearly zero and the community does not typically experience this strain of the epidemic returning. All areas of the economy reopen, and gatherings of all sizes resume.

The latest updates on the reopening of the economy in Michigan may be found at: https://www.michigan.gov/coronavirus/.

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This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.