COVID-19 Reopening Guidebook
- Operational Infrastructure
- Legislative, Regulatory and Public Health Landscape
- Reliable Local Information Sources
- Safe and Healthy Work Environment
- Screening, Testing and Personal Protective Equipment
- Employment Laws and Regulations
- Labor Relations
- Workers Compensation and Tort Liability
- Supply Chain
- Preparation for Reopening
- States with Shelter Orders that have Issued Reopening Plans
- Guidelines for States without Shelter Orders
For access to all of our COVID-19 alerts and information, please click here.
Ensure An Adequate Operational Infrastructure Exists
Just as companies created business continuity, teleworking, and safe operating plans when the spread of COVID-19 led to business closures, so too should companies be creating plans for resuming their in-person operations. Businesses should consider the following while creating reopening plans and procedures:
Designating A “Workplace Coordinator.” Companies should consider identifying a workplace coordinator who will be responsible for COVID-19 issues and their impact in the business. This person could be a manager or HR representative, but should be sufficiently senior as to be empowered to follow, implement, and enforce the plan.
Reviewing And Reconfiguring Worksites And Work Spaces As Needed. The Centers for Disease Control and Prevention (“CDC”) Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (here) encourages businesses to implement social distancing “if recommended by state and local health authorities. Social distancing means avoiding large gatherings and maintaining distance (approximately 6 feet or 2 meters) from others when possible.” Thus, businesses should review the layout and structure of their office to determine whether they need to (and if so, how to) reconfigure the office and workspaces to ensure adequate distance between employees. Reconfiguring workspaces does not have to involve a full renovation (although it certainly could). These simple, lower cost adjustments could go a long way in minimizing risk:
Reorganizing desks or cubicles to put at least six (6) feet of distance between employees;
Removing seating from lobbies, waiting rooms, conference rooms, breakrooms, or common areas to limit the number of people who can congregate;
Where possible, requiring that visitors and vendors be seen by appointment only in order to control the number of individuals present at the office at any time;
Spacing out high demand items to prevent congestion;
Setting occupancy limits for restrooms, elevators, breakrooms, etc., and posting these mandates conspicuously in the spaces;
Establishing protocols for how people will enter and exit the building, while maintaining social distance (this may include setting a schedule for elevator usage, marking off areas for people to wait in line that are sufficiently spaced out, establishing a directional traffic flow for walking around the facility or office that will eliminate people walking past one another); and
Closing (or denying access to) portions of the worksite that cannot be safely reopened (e.g., locker rooms, cafeterias, gyms, shared work stations or equipment, etc.).
These factors will all be site and business specific, but considering and altering the physical work environment to ensure safe social distancing practices are implemented is an important step for employers to take before reopening for business.
Establishing A Robust Cleaning And Disinfecting Protocol. During the COVID-19 pandemic, businesses must enhance and increase the frequency of their routine environmental cleaning and disinfecting protocol. Thus, prior to reopening, businesses should develop a schedule for regularly cleaning and disinfecting all frequently touched surfaces in the facilities, such as workstations, keyboards, telephones, handrails, and doorknobs, multiple times during the day. Sanitizing customer carts and baskets after each use is a good practice for retail establishments. In addition, companies may also want to consider installing foot handles on doors to minimize the need for individuals to touch the door with their hands. In addition to an enhanced standard cleaning protocol, businesses should also have a special cleaning and disinfectant protocol to be implemented after persons suspected or confirmed to have COVID-19 have been in the facility. In such instances, the CDC recommends the following for facilities that do not house people overnight:
Close off all areas visited by the ill person;
Increase air circulation in the area;
Waiting 24 hours before beginning other cleaning measures;
Clean all surfaces with detergent or soap and water prior to disinfection; and
Disinfect all surfaces with an EPA-approved product effective against the virus that causes COVID-19.
Evaluating And As Necessary Modifying COVID-19 Response Measures. The rapid transition to temporarily-closed or remote-work status necessitated many policy and operational changes across industries, some of which may need to be reversed to maintain proper business continuity and network security protocols. For example, personal devices may have been permitted to access network resources over a VPN; however, not all organizations are adequately prepared for personal devices to be used on- premises. Inventorying these changes will help ensure that essential practices do not slip through the cracks as reopening occurs. Employees may have been repurposed to different business functions as a consequence of location closures; employers should be prepared to unwind these changes as necessary.
Reviewing And Modifying Pre-COVID-19 Employment Policies. Conducting a comprehensive review of all company policies and procedures helps ensure that policies are current with the COVID-19 situation and that the business is prepared to respond accordingly. At a minimum, companies should review their leave policies, especially if they have fewer than 500 employees and will be covered employers under the Families First Coronavirus Response Act (“FFCRA”); reimbursement and business expense policies, especially as it impacts employee expenses for teleworking; scheduling and work hours policies, especially as it impacts any staggered schedules, operating hours, or teleworking expectations; shared or communal space usage policies; and their safety and security policies. It will be important for employees to understand all employer policies, and for employers to ensure that managers and supervisors are prepared to implement and enforce the policies fairly and consistently.
Assessing Business Continuity Plans. Companies should assess and, if necessary, update existing plans related to business continuity during COVID-19 plans. As the United States continues to exhibit highly regionalized divergences in pandemic severity, businesses should identify and develop plans to address product supply shortages in connection with decreased vendor capacity or increased consumer demand. Companies should also assess their ability to flexibly order by region, state, or other grouping. Businesses may need to identify alternate suppliers, warehouses, and distribution centers to address potential closures.
Incorporating New Business Models. COVID-19 resulted in major business changes for many companies. For example, companies may have relied more heavily on the website in marketing, sales and customer relations; they may have conducted more transactions electronically; or identified new supply chains and new ways of delivering products and services. Incorporating these business changes into the period of return-to-work can reduce the needs for employees, customers, and vendors to be in the workplace, increasing the ability to arrange for social distancing at the workplace.
Communicating Expectations, Protocols, And Processes To Employees And Other Key Stakeholders. Companies should ensure that their planning includes provisions for providing employees, vendors, and customers with pertinent ongoing communication. As the situation changes from day-to- day, companies should ensure that they have a mechanism established to provide necessary updates and communication to all individuals who interact with the business. Businesses should prepare communication packages to facilitate a quick response to high-frequency scenarios, such as alerting employees to potential workplace exposure after a co-worker has tested positive for the virus, highlighting changing workplace or store hours in response to local conditions, and distributing guidance from trusted governmental or academic sources.
Creating Pathways For Communications From Employees, Customers, Vendors And Visitors, and Information Protection. Companies should ensure that employees, customers, vendors, and visitors have clear communication lines for expressing concerns and notifying the company of threats and hazards relating to COVID-19. Further, when an employee or contractor tests positive, he or she needs to know how and to whom to communicate that information to ensure that it will reach only those with a need to know. Additionally, lines of communication should be established to coordinate major COVID-19 announcements to and from key organizational affiliates and business partners to the extent that they will impact an organization’s operations or public perception. The business should also ensure that processes exist to keep Google and other web contact points updated as locations reopen and hours change.
Determine The Role Of Third-Parties In Reopening. Companies should consider whether they will need to confer with third-parties to prepare their workplaces, or whether they can complete the tasks entirely in- house. For example, increasing ventilation rates and the percentage of outdoor air that circulates into the applicable systems are good ideas based on current guidance, but could require companies to confer with their heating and air conditioning vendors, property managers, or landlords to determine the possibility and practicability of such steps. Similarly, if a company will be conducting temperature checks or COVID-19 tests of all employees and visitors to the workspace, it may need the assistance of third-party health care providers to conduct the tests (and must make sure that those providers share, protect, retain and destroy the information appropriately) as well as vendors who sell the necessary equipment. The same would be true if a company planned to provide specific PPE to employees, as a third-party vendor may need to supply the PPE, and shortages in certain supplies may dictate a reopening timeline that is outside the company’s control. Instructional signage packages for employees and customers may be needed to facilitate social distancing practices. Accordingly, continuous communication with corporate purchasing functions is essential to understanding where an organization stands in reopening preparedness. The Workplace Coordinator should be responsible for interfacing with procurement functions and tracking the ETA for these supplies, as well as identifying related supply chain risks. In contrast, some steps like encouraging respiratory etiquette and hand hygiene, creating staggered scheduling, or reconfiguring desks and cubicles may be handled internally.
Understand The Applicable Legislative and Regulatory Landscape
As more states opt to repeal, revoke or allow their “shelter-in-place” or “stay-at-home” orders to expire, it is important for businesses to understand the scope of the reopening orders and how they may vary from state to state. As of the date of this guidance, 42 states have implemented state-wide “shelter-in-place” or “stay- at-home” and 31 of these states have ended (or expressed a plan to end) those orders. Additionally, most “reopening” states are choosing to issue guidance on how to “Reopen.” While the number increases daily, as of May 7, 2020, twenty-five states have issued plans, or other guidance, on how companies operating within that state should reopen for business. The various state-specific guidance generally leave social distancing measures in place, and continue to prohibit large group gatherings. Most coastal states have reopened beaches, and many states appear comfortable reopening entities that operate outdoors, like state parks or golf courses. Additionally, numerous states have allowed retail establishments to offer curbside delivery, which was previously reserved solely for restaurants. In most instances, even for the businesses that open or are reopening, occupancy limits and/or reservation requirements remain in effect to ensure proper social distancing and limitation of groups. Further, some states are requiring that employees working in the reopening businesses wear masks, and states like Vermont are allowing the businesses to decide whether customers must wear masks.
While many states are allowing in-person dining in restaurants, others are limiting restaurants to curb-side, delivery, or to-go orders, and most states are continuing to require that bars remain closed. Similarly, states seem divided on the reopening of personal care or close-contact businesses like hair and nail salons, gyms, and fitness facilities. Georgia, Utah, and Colorado have allowed some or all of these businesses to reopen under certain circumstances, while other states, such as Alabama and Texas, continue to delay these reopenings. Even where these businesses are allowed to reopen, many states provided detailed guidelines to the customer-facing businesses where human interaction is expected to occur in the daily operations of the business, including non- essential retail establishments, salons, barber shops, restaurants, and fitness facilities. Notably, most states – Montana excluded – have not specifically set a date by which schools may reopen for in-person instruction. In Montana, schools may reopen for in-person classes beginning on Thursday, May 7, 2020.
These Reopen Orders are being issued before widespread testing of the population has occurred and before simple, cheap, and reliable testing for the COVID-19 virus or antibodies is available. Accordingly, many of the guidelines encourage certain businesses to test the temperature of employees, customers, and visitors to the work premises, and, those showing a fever or other symptoms are to be banned from the work premises until healthy.
For the states that did not issue state-wide shelter in place orders, most still implemented some level of restrictions on business operations in an effort to keep the coronavirus pandemic in check. Several states, Iowa, Nebraska, North Dakota, Oklahoma, Utah and Wyoming, have issued reopening guidance to start easing the restrictions on businesses. This guidance generally still requires social-distancing protocols and sets occupancy limits on retail businesses and restaurants. Further, several states require customers and employees to wear masks where close customer-interaction is unavailable including tattoo parlors, salons, and massage parlors. States are requiring strict sanitation guidelines for gyms and restaurants. Notably, even in the states that did not issue state-wide shelter in place orders, many bars are still required to stay closed.
Due to the vast differences in state reopening plans, businesses that operate in multiple jurisdictions must recognize that a “one-size-fits-all” reopening strategy may not meet the requirements of each state in which they conduct business. (See Appendix 1 to this guidebook for state-specific information.) Further, since roughly half of the states have partially or fully suspended those orders without having clearly met the “gating criteria” of public health authorities, Businesses should consider what their states say, but should also make their own decision; they may be able to do more for safety than state guidelines (which in many cases have been more aggressive about reopening than public health guidance has recommended) can require, and doing so may reduce their liability exposures. While businesses should consider taking a more cautious approach than required under certain state orders, they should not take a more aggressive approach to reopening than is allowed.
In addition to the state guidance, there is a significant body of federal agency guidance to consider. Many administrative bodies, including the Occupational Safety and Health Administration, the Wage and Hour Division of the Department of Labor, the Food and Drug Administration, and the CDC, are providing regular updates on their websites with industry-specific guidance. To ensure they are basing decisions on the most up-to-date information, companies should monitor the applicable agencies for updates, advised protocols, and insight.
It is also important to remain conscious of the limitations of the available guidance. On May 14 the CDC issued high-level decision trees for reopening of businesses, restaurants and bars, schools, camps, child care centers and mass transit systems. These decision trees have been criticized by many public health experts as insufficiently specific and overly permissive. In addition, the guidelines are less detailed than the extensive guidance that the CDC originally considered releasing. Some associations, like the School Superintendents Association, are advising their members to follow the more extensive unofficial CDC guidance. For these and other reasons, it is prudent for organizations to consider the most conservative public health guidance currently available on reopening issues.
Identify Reliable Sources For Local COVID-19 Information
The CDC Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (here) strongly encourages businesses to coordinate with state and local health officials so timely and accurate information can guide their COVID-19 related decisions. Thus, few factors will have more impact on a reopening plan than the situation in the specific community where the company’s facility is located. Accordingly, companies should regularly consult their state’s department of health website for updated information on the scope of the pandemic in the local area. In addition, guidance from the scientific and medical communities (which may have some overlap with agency-driven guidance from agencies like the CDC) should be considered in determining the right time for companies’ facilities to reopen and the related necessary precautions. As doctors, scientists, and public health officials learn more about COVID-19, community transmission, antibodies and immunities, treatments, and hopefully a vaccine and/or cure, the guidance they provide will help inform decisions on a variety of topics, including testing, tracking, and treatment.
Ensure Ability To Maintain A Safe And Healthy Work Environment
Under the Occupational Safety and Health Act, employers have a general duty to furnish to their employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees...” This duty continues to exist during the COVID-19 pandemic. Thus, in addition to the steps discussed here for minimizing risk to employees, employers should:
Consider increasing air flow and ventilation systems facility-wide, opening windows, and/or airing out small shared spaces throughout the day, between shifts, and during low usage times to reduce the risks of airborne exposures to COVID-19 by employees working at the facility.
Consider whether strategic scheduling of employees is feasible. This could be accomplished in many different ways, including returning employees to the workplace in waves; staggering employee schedules each day to limit the number of people present at any time; alternating weeks between employees working onsite; and/or, continuing to allow employees to telework where practicable. The primary objective here should be for employers to use their scheduling practices to ensure necessary in-person interactions at the worksite, while still accounting for and accommodating safe social-distancing protocols.
Consider whether spacing cubicle usage so that every other cubicle is used is feasible.
Educate employees about how they can reduce the spread of COVID-19, including following the employer’s policies and procedures related to illness and safe hand washing, coughing and sneezing etiquette, and other cleanliness guidelines.
Clean and disinfect frequently touched objects and surfaces, such as workstations, keyboards, telephones, handrails, doorknobs, shared objects in a breakroom or lounge, elevators, and bathrooms. Avoid having employees share workstations when possible, and increase the frequency with which any shared spaces are cleaned and sanitized.
Adopt policies and practices that promote social distancing by maintaining at least six feet distance, avoiding large gatherings, limiting occupancy in smaller or enclosed rooms, and encourage virtual meetings over face-to-face interaction.
Support respiratory etiquette and hand hygiene for employees, vendors, customers, and visitors by providing tissues and no-touch disposal, hand sanitizer, no touch door openers, soap and water, discouraging handshaking, and posting the requisite notices.
Perform routine environmental cleaning and disinfecting, and ensure that employees have the necessary cleaning supplies to perform maintenance and cleaning on their own equipment as needed.
Advise employees against non-essential travel for business related reasons and check the CDC’s traveler’s health notices for the latest guidance and recommendations.
Create and implement flexible sick leave policies consistent with public health guidance to ensure that sick employees stay home, and that all employees understand the guidance.
If there is a confirmed case of COVID-19, identify where and how employees might have been exposed at work and notify employees of the confirmed case (without revealing the infected employee’s confidential medical information).
It is important that employees understand their role in helping maintain the safety of the workplace. Employers should prepare their employees virtually for their return to the office. Regardless of what changes the company is making to the office or to the policies and practices, employees will need to learn new patterns of behavior for the office in order to abide by existing guidance. Creating virtual trainings and/or a virtual tour of the updated office environment will help employees prepare for returning to the office, and will help them feel comfortable that the company has thoroughly prepared for a safe reopening.
Determine The Need For Screening, Testing, And The Use Of Personal Protective Equipment
Businesses should consider whether screening protocols and/or personal protective equipment (“PPE”) (masks, gloves, gowns, etc.) will be necessary for their respective facilities and to whom (employees or visitors or both) these requirements will apply. Various agencies and sources have confirmed that the ability to identify people who are sick, enforce their quarantine, and trace their contacts are all key components of reopening businesses safely. Indeed, on April 23, the Equal Employment Opportunity Commission took the position that companies may administer COVID-19 tests before allowing employees to enter the workplace. However, employers should establish policies and practices to ensure consistency across the board, provide training for any employees involved in conducting the screenings, and implement practices to ensure any related information is stored confidentially and in compliance with the Americans with Disabilities Act, Genetic Information Nondiscrimination Act, and other confidentiality guidelines. Further, employers should understand the rules for the protection, retention, and potential sharing – as with public health authorities – of positive test results. When testing non-employees, businesses should have consistent policies and practices applied to all visitors. In addition, companies must remain cognizant that the information obtained may need to remain private under applicable federal or state privacy laws or to prevent notice-triggering breaches.
Businesses that decide to implement testing or screening protocols should consider the incidence of false- positives or false-negatives associated with a particular test or screening mechanism. For example, if utilizing temperature taking, businesses should be mindful that some people transmitting COVID-19 do not have a fever or any other symptoms. And, if administering COVID-19 tests, companies should note that “a negative test does not mean the employee will not acquire the virus later.” Thus, even when using COVID-19 tests, businesses should still require that all individuals allowed access to the facility observe infection control practices (such as social distancing, regular handwashing, and other measures) to prevent transmission of COVID-19. Further, companies should develop clear and concise communications for employees, customers and visitors warning of the COVID-19 virus, risks of contamination by entering the premises, and the limitations of the testing protocol. Businesses may even want customers and visitors to sign a disclaimer of liability or an acknowledgement of the risks, as a condition to being granted access to the premises, and such a disclaimer can be combined with such an informed consent.
Consider And Understand Pertinent Employment Laws And Regulations
There are a myriad of laws and regulations that govern employers’ interactions with their employees even when there is not a national pandemic. However, the COVID-19 pandemic raises special concerns and employers should be especially cognizant of the following:
The Occupational Safety and Health Act. The Occupational Safety and Health Act (“OSH Act”) mandates that employers have a general duty to furnish to their employees a safe workplace free from recognized hazards impacts how employers respond to COVID-19. The Occupational Safety and Health Administration (“OSHA”), the agency charged with implementing the OSH Act, has issued guidance to assist employers in preparing their workplaces for COVID-19. Employers who comply with the guidance will likely be viewed as having met their general duty to furnish a safe workplace. In addition, OSHA has expressed an intent to afford employers some flexibility to account for the rapidly changing COVID-19 landscape. Further, OSHA has clarified its recordkeeping and reporting requirements and informed employers that COVID-19 related illnesses or injuries are recordable only if there is objective evidence that it is work related and that evidence was available to the employer.
The Families First Coronavirus Response Act (“FFCRA”) And The Family And Medical Leave Act (“FMLA”). While the leave requirements of the FFCRA did not apply to workplaces that were completely shuttered, or situations where the employer did not have work for the employee to do (See DOL FFCRA FAQs 24-28), that will change when the business reopens. Employers with fewer than 500 employees that are covered by the FFCRA must ensure that they fully understand their obligations and the various types of COVID-19 related leave provided for under that statute prior to reopening the business. Explanations and analyses of the FFCRA are available here. Employers should remember that the Department of Labor (“DOL”) strongly encourages employers and employees “to collaborate to achieve flexibility and meet mutual needs when addressing employee requests for leave.” Employers should review their leave policies to ensure compliant policies and appropriately flexible leave procedures.
Similarly, many employers will be covered by the traditional job protected leave provisions of the FMLA. Employers should review their policies and procedures concerning leave entitlement under the FMLA, and ensure that supervisors, managers, and employees are all informed of the policies and procedures involved in requesting FMLA leave for covered employers and eligible employees.
The Americans With Disabilities Act (“ADA”). The ADA protects employees and applicants from job discrimination based on disability and requires employers to make reasonable accommodations for employees with disabilities under certain circumstances. This will manifest in two key ways with regards to COVID-19. First, employees with preexisting conditions that increase their risk of injury, illness, or death from COVID-19 exposure may be entitled to reasonable accommodations from their employers. Second, while employers may not discriminate against employees with disabilities, during a pandemic, employers should familiarize themselves with the “direct threat” guidance under the ADA, which allows employers to take actions that may otherwise be prohibited by the ADA.
To the first issue, while having COVID-19, in and of itself, will likely not rise to the level of a disability protected by the ADA, it may exacerbate an employee’s existing disability that was previously under control. Employers should be prepared to discuss reasonable accommodations and engage in the interactive process with employees who request accommodations as a result of COVID-19. Employers should consider all requests for reasonable accommodations in light of the changes implemented by their pandemic response, their business continuity and general operations plans, their updated policies, and their revised practices. For example, while requesting “telework only” might not have been a reasonable accommodation request prior to the pandemic, employers may not be able to prove the request is unduly burdensome if portions of their workforce have been successfully teleworking for weeks or months prior to the request.
Regarding the second issue, during a pandemic, Equal Employment Opportunity Commission (“EEOC”) guidance states that the presence of a direct threat to the workplace allows employers to conduct “medical tests” that would otherwise normally be prohibited. Thus, to ensure a safe working environment for all employees, employers may be able to require medical tests, inquire about health-related matters, and prevent employees who have tested positive for or display symptoms associated with COVID-19 from entering the workplace. Employers are encouraged to understand the direct threat framework and apply it consistently on a rolling basis.
The Fair Labor Standards Act (“FLSA”). Unless employees fall within one of the FLSA’s exemptions, they must receive at least $7.25 per hour for each hour that they work and one and one-half times their regular rate of pay for every hour in excess of 40 hours worked per week. Many states have established a higher minimum wage and increased overtime compensation. To ensure that they are properly compensating employees for all hours worked, employers must be diligent in tracking the hours worked by employees who are not exempt from the FLSA’s or the state’s minimum wage and overtime requirements. Where most businesses have explicit timekeeping mechanisms to track hours worked at the office, facility, or worksite, and to ensure employees took their lunch or rest breaks, those processes and procedures may have been unavailable to teleworking employees and difficult for employers to enforce for a work-from- home workforce that sprung up practically overnight. Additionally, as many employers were forced to cut hours, stagger shifts, furlough, or lay off employees, such actions may have wage and hour implications as exempt employees must receive a certain amount on a salary basis to retain their exempt status. Further, employers may be required to compensate employees for time spent at the employer’s facility awaiting employer-mandated screening or testing procedures or putting on or taking off PPE.
Anti-Discrimination Statutes. Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination and harassment based on their race, color, national origin, sex and religion. Similarly, the Age Discrimination in Employment Act (“ADEA”) protects employees from discrimination and harassment based on being over the age of 40 and the ADA protects employees from discrimination based on their actual or perceived disabilities. Employers need to remain cognizant of these protections when returning employees to the workplace. If the employer intends to take a staggered or staged approach to returning employees to the workplace, it should consider allowing employees to volunteer for stages. Should this not be feasible or provide the desired result, employers should be careful not to stagger the return in a manner that might prove to have a discriminatory impact (i.e., by delaying the return of all older or pregnant employees). Similarly, while employers may exclude employees who pose a “direct threat” from the workplace, it cannot exclude all older workers or pregnant employees from the office, even though the CDC states they are more susceptible to the impact of COVID-19.
Employers should also be vigilant during this time to ensure that their employees are mindful of the employer’s existing anti-harassment and anti-discrimination policies. Employers may want to consider sending employees a reminder that ethnicity is not a risk factor for transmission of COVID-19 and that stereotyping and discrimination will not be tolerated in the workplace. Further, supervisors and managers should be reminded about their responsibility to stop any xenophobic or racist behavior, speech, or action, and to follow company policies for reporting such actions.
Evaluate Labor Relations Implications
Among the numerous issues employers are likely to encounter as they reopen are ones related to the National Labor Relations Act (“NLRA”), whether they have a union or not. The NLRA provides protections to employees at unionized and non-unionized workplaces alike. Among the rights provided by the NLRA is the right to engage in protected concerted activity. This can take many forms and relate to many issues, however, it is typically when two or more employees act together to improve their terms and conditions of employment. Examples include protesting, making a report to HR, or posting on social media. Employers should be on the lookout for such activity as they start to reopen and call employees back. Some employees will, for example, have safety concerns about returning to work and may join together and refuse to work in what they consider unsafe conditions. While such refusal must be reasonable and based on a good faith belief as to the unsafe conditions, employers need to consider whether it is protected activity under the NLRA because getting it wrong could have significant consequences.
Additionally, businesses should remain extra vigilant of potential union organizing as they reopen. The fear created by this situation along with the uncertainty of work going forward, concerns about personal safety, and, in some instances, feelings of mistreatment by management, could create opportunity for unions to step in now or after the dust settles. In that regard, employers should make sure they have the right policies and practices in place as they relate to union organizing and treatment of employees, continue or restart employee roundtables to stay on top of issues that could drive employee dissatisfaction and a resulting desire for a union, and, of course, show respect and compassion for employees during and after these tough times.
In addition, employers that took loans under the CARES Act should be cognizant of the impact that loan may have on their labor strategy. Unionized employers who received loans are obligated to continue the terms of existing collective bargaining agreements for the term of the loan and two years after. Additionally, the Act requires that an employer remain neutral in any union organizing effort for the term of the loan. In that regard, the best strategy is a proactive one that addresses employee concerns and advocates for them such that they have no reason to bring in a union.
Finally, employers with unions need to be sure their actions continue to abide by the terms of their collective bargaining agreements and that they continue to bargain over any changes in the terms and conditions of employment - even state ordered closures do not suspend the duty to bargain.
Workers’ Compensation And Tort Liability Issues
As COVID-19 cases have spread, so too have lawsuits relating to the impact of the pandemic. In the wake of the pandemic, courts will have to navigate uncharted waters to better define a business’s duty to its employees and customers/visitors, and determine when businesses have breached such duty. Even where damages are clear, potential litigants will still have a difficult time showing causation in many cases, especially given the nature of community transmission.
Employee Allegations Of Exposure. An employee who believes that he or she was exposed to COVID-19 at work will likely seek compensation through a workers’ compensation claim or a tort claim. The remedies available under workers’ compensation are typically less than the available remedies in a successful tort action. Specifically, workers’ compensation damages hold the employer responsible for the employee’s medical expenses and partial reimbursement of lost earnings (or earning potential) due to a temporary or permanent disability. In contrast, a traditional negligence lawsuit could result in a judgment for medical expenses, lost wages, pain and suffering, and even payment for a spouse’s loss of consortium with the injured person.
Workers’ compensation laws may provide employers with potential protection against civil lawsuits by employees who have confirmed cases of COVID-19 and experience illness. Generally speaking, state workers’ compensation remedies usually provide employees with their “exclusive remedy” for injuries that occur in the course of their job duties. However, workers’ compensation laws vary by state; thus the employer’s location will determine whether COVID-19 claims will be covered by workers’ compensation.
While many states’ workers’ compensation laws exclude diseases that are an “ordinary disease of life to which the public is exposed,.” COVID-19 presents a novel situation and states are enacting unique laws to address it. For example, on May 6, 2020, California’s legislators created “a time-limited rebuttable presumption for accessing workers’ compensation benefits” that is applicable to employees who worked outside of their homes in essential businesses during the statewide quarantine and stay-at-home order. Illinois introduced a similar law on April 16, 2020, which was successfully challenged in state court and subsequently withdrawn by the Illinois Workers’ Compensation Commission on April 27. It is likely that California’s law will be challenged as well; however, the outcome cannot be predicted. Given the anticipated onslaught of challenges, whether COVID-19 related illnesses are covered by workers’ compensation laws is still an open question and will likely remain so for a while.
Should COVID-19 infections not be covered by workers’ compensation laws, employees will likely assert civil tort claims alleging that their employers negligently failed to protect their workers from COVID-19 exposure, and that the employee suffered damages from that failure. While available torts vary by state, the most likely claims in tort would be a negligent supervision, personal injury, or wrongful death claim. To succeed on a tort claim, the employee will likely need to show negligence, recklessness, or willful disregard by the employer which resulted in the employee being infected with COVID-19; causation between the infection and the employer; and, damages ensuing from the infection. While employees will likely face an uphill battle to prove causation in such a tort claim–especially given what we know about the incubation period of COVID-19 and the community transfer—the threat of litigation still looms.
Visitor Allegations Of Exposure. Generally, businesses must exercise reasonable care to make their offices safe for visitors and customers. The most likely COVID-19 related cases from a customer or visitor would turn on the company’s duty of reasonable care from a premises liability standpoint. In most states, property owners and occupiers must exercise ordinary care in keeping their premises safe. However, some states, such as Georgia, are clear that “a property owner [or occupier] is not an insurer of the safety of entrants, and a mere showing that an injury occurred while on the premises of a proprietor is not sufficient, by itself, to create a presumption of negligence.” It is reasonable to assume that customers and visitors are aware of the COVID-19 pandemic, and understand the risks associated with visiting public places and with failing to practice recommended social distancing guidelines, sanitation and hygiene, or other COVID-19 related guidance. Having customers and visitors to sign a disclaimer of liability or an acknowledgement of the risks could provide be written proof of this.
Assuming a business follows existing guidance to minimize the spread of COVID-19 at its facilities, employees, customers, and visitors will face challenges in prevailing on claims regarding COVID-19 exposure at the facility. Thus, it is important that businesses adhere to conditions imposed by state and local orders as well as the guidance provided by the CDC and the World Health Organization (“WHO”). Moreover, many states, such as New York, New Jersey, Illinois, Michigan, Pennsylvania, have issued executive orders or passed legislation providing limited civil liability immunity for healthcare providers during the pandemic, subject to certain requirements and limitations. The US Congress is also debating whether to provide some form of COVID-19 legal immunity to companies (beyond just healthcare). Thus, businesses should continue to monitor changes to both state and federal law related to these issues.
Consider Insurance And Related Considerations
As businesses reopen, employers should review their insurance policies and potential coverage for claims and events that may arise. Since the COVID-19 outbreak, lawsuits are pending against businesses, alleging, among other things, that a business’s negligence led to the virus infecting others on its premises. Countless businesses have submitted notifications to their insurers for their own business losses, and many already have filed lawsuits seeking recovery for these losses. This precarious, evolving situation has businesses seeking every option to mitigate their losses, including by attempting to reopen as quickly and fully as possible. In engaging in these efforts, it is imperative for businesses to understand what their current and future insurance policies may and may not cover with regard to the risks of reopening.
More specifically, businesses need to be aware of provisions in their current insurance policies that can affect or limit their ability to recover losses during and after reopening. They also should be knowledgeable about any information requested or required by insurers in connection with the notifications submitted to date relating to COVID-19 and with the renewal or purchase of insurance policies during and after reopening. They should monitor the federal, state, and local governmental approaches to insurance losses, liability, and funding, as discussions and efforts on how to address insurance liability and funding are underway at every level. Finally, and as an overarching matter, businesses should consult their insurance brokers and legal advisors regarding all of these issues to ensure that they are moving through this process with as much knowledge, information, and guidance as possible to be able to maximize any potential insurance recovery and make prudent investments in addressing these risks through insurance coverage.
Among the general items for consideration during the reopening process that potentially relate to insurance risk and recovery are whether, prior to reopening, there has been a known or suspected COVID-19 contamination in the workplace or common areas and whether the company knows of any employees, clients, or customers who have tested positive for COVID-19 or had reported symptoms of COVID-19. It is also imperative to examine whether it would be difficult to comply with applicable governmental orders, regulations and industry standards to reasonably provide a safe workplace or space for others to inhabit and visit. All of these issues pertain to a potential standard of care that should be evaluated in assessing risk of potential legal liability during and after reopening and the likelihood of insurance to respond to damages or losses relating to the same. Liability policies, from general to professional and other specialized policies, may provide coverage for third-party losses and damages during and after reopening, but businesses should review the terms, conditions, and exclusions to understand how to minimize risk and maximize recovery.
Businesses also should review with their insurance brokers and advisors the “sufficiency” of their insurance coverage for risks during and after reopening – both in amount and scope. There are coverages available for purchase now, and there will be others in the future, in standalone policies or as additional extensions of coverages to standard form policies. These coverages likely will come with higher premiums, so it is important to exercise due diligence and care in asking questions and providing information during the application for and purchase of insurance. Businesses already suffering losses during shutdown and shelter-in-place conditions will want to make prudent investments to assess, address, and potentially insure their risks. The insurance application and procurement process will require businesses to exercise care and consideration to provide accurate, current information in their applications and otherwise to avoid any forfeitures of coverage down the road. Businesses also should ask to see all forms and endorsements to the policies in question to ensure, to the greatest extent possible, that the risks they expect to be covered are not subject to obvious exclusions or deficiencies in the coverage they renew or purchase. Again, brokers and legal advisors are helpful to analyze and guide businesses through the risk assessment and insurance procurement process generally, and they can be a valuable resource during and after reopening. At a minimum, having a team in place to manage and assess risk – especially in light of the evolving governmental response -- will help a business navigate through the reopening process and procurement of appropriate insurance.
Evaluate Supply Chain Issues
The supply chain is another important consideration as businesses reopen. In addition to essential personnel, businesses require their essential equipment and inventory. COVID-19 has had significant and sometimes catastrophic impacts on supply chains. Businesses seeking to minimize further disruption by supply chain challenges should consider the following steps:
Understand the supply chain. Supply chains are unique to a business. It is more important than ever for companies to understand from where their equipment and supplies are sourced and how COVID-19 has impacted those suppliers. By digging into the specifics of its supply chain, a business can identify suppliers and processes that may have extended lead times and item unavailability.
Plan for delays. The supply chain goes beyond just immediate suppliers. The world is interconnected and a business’s suppliers may be served by suppliers half a world away. As a result, it may take longer for the business to obtain supplies that it could previously count on receiving quickly. Businesses can get out in front of these potential delays by re-ordering items faster or maintaining a larger inventory than usual for core equipment and items, if possible.
Revisit current supply agreements. COVID-19 has impacted demand across almost all sectors. Thus, companies should assess whether their existing supply agreements are appropriate for the current environment. In addition, they should consider negotiating with existing suppliers to make adjustments to terms to address the demand for goods and services. In addition to just addressing quantity, companies may also want to consider whether to revise payment terms.
Consider alternate suppliers and diversify. There is no better time than now for businesses to revisit whether their suppliers are right in the current environment. They should consider whether there are alternatives that, while a little more expensive, are closer to home and easier to obtain in an emergency. Additionally, moving from a handful of core suppliers to more suppliers in different locations may be an option to explore so that a “minimal” supply stream is in place if core suppliers cannot get the job done for any reason.
Following these simple steps will help companies ensure that when their doors reopen, supply chain issues do not stop them from being able to meet the demand.
Preparation for Reopening: Guidance for the Real Estate Professional
The COVID-19 pandemic has resulted in shuttered retail spaces and virtually empty office buildings as most employees worked remotely for a substantial period of time. In addition, a slew of new safety regulations are being imposed to slow the pandemic and combat a resurgence of the disease. As landlords, property managers and tenants prepare to reopen buildings and welcome their employees back to the workplace, they face issues and decisions in balancing the safety, health and well-being of occupants and their legal obligations.
The most important legal considerations are to ensure compliance with all laws and regulations as they continue to evolve and that the division of responsibilities in applicable leases and other contracts are followed. For example, leases often split cleaning and maintenance obligations between the landlord and tenant. Each party should ensure that it performs its contractual obligations and cooperates with the other where services needed to be integrated or if a question exists as to who bears responsibility for a particular issue.
While a myriad of issues will come up in specific situations, below is a list of some of the common issues to consider to help ensure the building or premises is ready to reopen. These issues are divided into five categories: (i) preparation of physical space; (ii) preparation of occupants; (iii) circulation plans for occupancy; (iv) procedures for social distancing; and (v) cleaning. It is important to note that these lists have been collected from various sources, it is not a definitive or exhaustive list, and local laws and regulations and practices will control.
Preparing the Building and Tenant Spaces for Re-opening. Prior to allowing people to re-enter a building that has been unoccupied for an extended period of time, the building and all critical components should be inspected for safety and performance purposes. Real estate professionals should review any cleaning plans and perform any necessary inspections, including HVAC, fire/life safety systems and any other mechanicals systems to confirm they are safe for full occupancy once again. Below is a list of additional matters that may be appropriate to examine when preparing a building that may have been unattended longer than usual:
Replace all air filters after flushing the building.
Procure the necessary equipment and complete any reconfiguration of the facility needed to ensure a safe work environment.
Review COVID-19 guidelines provided by the CDC (https://www.cdc.gov/coronavirus/2019-ncov/), OSHA (https://www.osha.gov/Publications/OSHA3990.pdf) and state and local guidelines to ensure necessary precautions and health and safety measures are followed for re-opening buildings and workspaces. Continue to monitor regularly and update guidelines when necessary based on any revised COVID-19 guidance.
Determine whether any federal agencies (e.g., Food and Drug Administration (FDA) Guidance (testing and treatments), Department of Labor (DOL), Internal Revenue Service (IRS) have issued guidance that should be implemented.
Create a management team to monitor COVID-19 developments and ensure property health and safety measures are in place and being followed.
Provide Personal Protection Equipment (PPE) and training to all personnel responsible for reopening and cleaning the building.
Ensure sufficient supply of cleaning materials and products for ongoing cleaning requirements and use are obtained from approved lists from governing authorities.
Review and prepare plans regarding changes to cleaning scope or any additional services necessary for ongoing health and safety measures for the building and workspaces.
All building owners and employers should provide written communication to the occupants and employees of any new guidelines and rules and regulations prior to re-opening.
Ensure all inspections, remediation, repairs and communications are complete before the building and tenant workspaces are reopened.
Preparing Building Occupants and Employees. In addition to preparing the physical structure for re- entry, employers should consider key policies for deciding when and how employees should return to work. The following is a list of matters an employer may consider:
Provide transparent and thorough communication regarding new health and safety measures that are being implemented (e.g., social distancing, building circulation, entry and exit, use of common areas).
Where appropriate, encourage teleworking, especially for “high risk” individuals, and require any person experiencing any COVID-19 symptoms to stay at home. Understand that, while some employees will be eager to return to the workplace, others can benefit from continuing to work remotely, the benefits of which include health priorities, family members’ schedules and reduced commute time.
Be aware of apprehension regarding social distancing and cleanliness, and implement and enforce protocols to provide for such measures and communicate that to occupants and employees.
All visitors should be approved in advance and accompanied while in the building.
Controlling Access and Circulation Throughout the Building. One of the major changes following the COVID-19 era will be the establishment of protocols to keep workplaces safe and healthy. Property managers, owners and landlords may consider the following measures to ensure a building remains safe:
Entry and Exit for the Building
Reduce the number of access points to the building so that people use monitored, protected entry points, except in the case of emergencies.
Install hand sanitizing stations at designated entrances to the building.
Consider screening (e.g., taking the temperature of an employee, testing for the COVID-19 virus or anti-bodies, representations by employees of good health and no known exposure to COVID-19 at home or elsewhere) as people enter the building. Note: Collecting the information is allowed but the information may need to remain private under applicable federal or state privacy laws or to prevent notice-triggering breaches.
Require all visitors to sign a release or other protections waiving liability, prior to granting access to your facility or providing services.
Install signage regarding entrance and exit procedures and other protocols for movement throughout the building.
Disable all touch screens or implement touchless registration via mobile phone.
Lobbies and Common Areas.
Install floor markings and Plexiglas or other screening devices to divide people for safe social distancing in areas of congregation.
Clearly communicate building protocols with signage and floor markings indicating directional flow throughout the building and safe social distances.
Provide PPE and hand sanitizing stations in lobby, elevator lobby and other common areas (including common area bathrooms) as appropriate.
Limit the number of occupants in a bathroom at any one time with clear signage providing direction.
Temporarily close fitness facilities.
Limit the number of occupants in elevators at any one time with clear signage providing direction.
Regularly clean and sanitize elevators, elevator lobbies and stairwells, including high touch points, and update cleaning protocols as necessary.
As an alternate offer access by stairwells to building floors with clear direction regarding traffic flow in stairwells.
Shipping and Receiving Locations.
Create a schedule and plan for shipping and receiving to limit contact with occupants.
Require persons handling and delivering parcels to wear PPE and insure they know how to properly use and dispose of the PPE.
Sanitize the exterior of any packages and parcels.
Creating a Plan for Implementing Social Distancing Procedures. "Social distancing" is now a part of everyday life for most Americans. Even in places where strict social distancing measures are not mandated, such protocols such as decreasing density in public spaces, actively managing personnel schedules and regulating office traffic patterns should be considered. Below is a list of additional considerations when executing social distancing processes:
Alternate employees' schedules or stagger arrival and departure times.
Enable business teams to negotiate their own “in-office” versus remote-work schedules to promote social distancing; ensure such plans are in compliance with your company’s protocols and procedures.
Rearrange office logistics to provide for at least six-feet in distance when socializing, including reducing the capacity of common spaces if necessary.
Install panels, structures or other screening in higher-density work environments.
Enforce stringent cleaning protocols for all shared spaces.
Discourage shared use of small rooms and hoteling.
Designate the direction of foot traffic in main circulation paths throughout work spaces.
Limit in-person meetings.
Reducing Touch Points and Increased Cleaning Practices. Concerns over human contagion can be mitigated by making simple and effective changes, such as providing for touchless ingress/egress devices, promoting a “clean desk” policy and ensuring common areas are always clean. Other steps may include:
Establish and maintain enhanced cleaning and disinfecting practices throughout work spaces, building common areas, common workspace areas and other areas prior to opening.
Supply disinfectant supplies near or on each desk or work area, particularly those that are shared.
Remove shared food and beverage items, and consider restocking with single-serve items.
Provide hand sanitizer, disinfectant wipes and other such products that will allow personnel to disinfect as necessary.
Remove high-touch shared tools such as whiteboard markers, remote controls, breakroom supplies, etc.
Businesses are essential to returning America to a semi-normal state. However, decisions to re-open should be deliberately and thoughtfully made. Companies should be considering their options, consulting legal counsel, and creating plans for how they will reopen their doors, what they will be changing, how they will be ensuring safe operations (including how they will comply with their legal responsibilities and requirements), and promoting and providing safe and healthy environments.
As with all things COVID-19 related, we will continue to monitor the situation and provide additional updates and guidance as necessary.
Specifics of State Reopening Orders
States with Shelter Orders that have Issued Reopening Plans
Alabama. Alabama’s stay-at-home order expired on April 30. Alabama has implemented a new order that allows all retail to open at 50 percent capacity with social-distancing measures in place. Beaches are reopened, but groups of more than 10 are prohibited. “Higher-risk” businesses shall remain closed, which include entertainment venues, athletic facilities, and close contact service providers, such as salons and gyms. The order supersedes less stringent local orders. See partial reopen order.
Alaska. Alaska’s stay-at-home order expired on April 24. Alaska has entered into phase one of its reopening, with restaurants open for in-person dining, but only with tables consisting of members of a single household and only with a reservation. Restaurants can be only 25% full, with some required to keep a log of customers to help with any future contact tracing. Close contact service providers, such as nail salons and barbers, are allowed to open for services by appointment. Retail stores may reopen with social distancing and masks work by all employees and customers, but with a limit of twenty (20) people or 25% of capacity at a time, and only one adult from a household can enter at a time. See reopen announcement.
Colorado. Colorado’s stay-at-home order expired on April 26. Colorado has since reopened personal-care services, including hair and nail salons, under certain conditions. Some cities, such as Denver, have more restrictive measures still in place. Offices are allowed to reopen with 50% capacity and with social distancing, but the governor has encouraged workers to continue working from home, if possible. Bars and restaurants will remain closed to in-person dining at least until mid-May. Nonessential businesses remain closed through at least May 8, but with many counties allowing for curbside pickup from retailers. Real-estate agents are allowed to show homes, though open houses are not allowed. Face masks are required, and group gatherings can’t exceed ten (10) people. See partial reopen order.
District of Columbia. Washington, D.C.’s stay-at-home order will expire on June 8. Nonessential businesses must remain closed until then; however, Washington, D.C. has announced a pilot program that will grant waivers to educational and academic retailers. Beginning May 15, educational and academic retailers can apply to reopen for curbside and front-door pickup. In total, forty businesses are expected to meet the requirements for waivers, with preference given to locally-owned businesses. Approved retailers will be required to share data with the government about sales, hours, adjustments in operations, and lessons learned regarding their reopenings. See extension announcement.
Georgia. Georgia’s stay-at-home order expired on April 30. Gyms, fitness centers, bowling alleys, body art studios, barbers, cosmetologists, hair designers, nail care artists, estheticians, their respective schools and massage therapists reopened April 24. Restaurants, social clubs and movie theaters reopened April 27. The state has encouraged high-risk Georgians to stay at home at least until mid-June. See partial reopen order.
Idaho. Idaho’s stay-at-home order expired on April 30. Idaho has allowed most retail stores, churches, and day cares to reopen under a “data-driven” approach to reopening Idaho’s economy. All other nonessential businesses will remain closed until May 16. If, by May 16, coronavirus cases continue trending down, most other businesses, with the exception of bars and nightclubs, will be allowed to reopen. See partial reopen order.
Illinois. Illinois’s stay-at-home order is set to expire on May 30. The modified order allows certain businesses to reopen as of May 1. That includes greenhouses, garden centers, and pet groomers. Businesses previously designated as nonessential can also reopen to curbside pickup or delivery. See modified stay-at-home order.
Indiana. Indiana’s stay-at-home order is set to expire on May 15. Starting May 4, the state entered Phase 2 of 4 in its reopening plan, excluding certain counties. Manufacturing, industrial and construction are allowed to open if following required guidelines including daily screening of employees utilizing face coverings and social distancing. Screened employees may also return to daily office work in small waves. Retail and commercial businesses are permitted to reopen at 50 percent of capacity. Some BMV (Bureau of Motor Vehicle) locations will reopen by appointment only, public libraries may open based on their own policies and require daily screenings of employees. See partial reopen announcement.
Kansas. Kansas’s stay-at-home order expired on May 4. Kansas has announced that it will reopen based on “milestones, not on a timetable.” Mass gatherings are still limited to ten (10) people or fewer. Businesses can reopen unless otherwise identified by the governor or local government. See partial reopen order.
Kentucky. Kentucky’s stay-at-home order has no set expiration date. Starting May 11, manufacturing, construction, vehicle and vessel dealerships, professional services, horse racing, pet grooming and boarding will reopen. On May 20, retail and houses of worship will reopen. On May 25, barbershops, salons, cosmetology businesses, and similar services with no more than ten (10) people may reopen. See partial reopen order.
Maine. Maine’s stay-at-home order is set to expire on May 31. The “gradual reopening plan” continues the prohibition on gatherings of more than ten (10) people, the quarantine of all people entering or returning to Maine for a period of 14 days, and the special precautions for older Mainers and others at risk of COVID-19. It will also require that people of Maine wear cloth face coverings in public settings where physical distancing measures are difficult to maintain, and continue strict requirements for long-term care facilities. Stage 1 of the reopening plan allows for limited expansion to personal services such as hair salons and pet grooming and some types of recreation, such as drive-in theaters, hunting, and golf. Stage 2, tentatively set for June 1, plans to reopen restaurants, gyms, nail salons, and in-store retail. Stage 3, set for July 1, allows for the opening of lodging, bars, and personal services such as spas, tattoo parlors and massage facilities. See partial reopen announcement.
Minnesota. Minnesota’s stay-at-home order is set to expire on May 17. The state allowed certain non- essential businesses with “workers in non-customer-facing industrial and office-based businesses who cannot work from home,” to reopen. Retail businesses and other non-critical businesses will resume operations with curbside pick-up. See partial reopen order.
Mississippi. Mississippi’s stay-at-home order expired on April 27, although vulnerable individuals are encouraged to continue sheltering under the state’s new “Safer at Home” order, which is set to expire on May 11. Retail businesses are allowed to open with social-distancing measures in place. Those businesses will have to reduce their capacity by 50 percent and they must provide hand sanitizer for customers when they walk inside. Barbers, gyms, salons, spas, and movie theaters remain closed. Restaurants are limited to drive- through, carryout, and delivery. See partial reopen order.
Missouri. Missouri’s stay-at-home order expired on May 3. All businesses can reopen as long as social distancing guidelines, such as keeping 6-foot distance from other people are followed. Some businesses are required to take additional precautions to protect their employees and the public, such as occupancy limits at retail locations. See partial reopen order.
Montana. Montana’s stay-at-home order expired on April 27. Retail businesses may open with social- distancing measures in place. Restaurants, bars, and casinos can open with social distancing and capacity reductions. Schools were allowed to resume in-person instruction, pending decisions from local districts, on May 7. Gyms, movie theaters, bowling alleys, and bingo halls are to remain closed. Less restrictive local orders are preempted. See partial reopen order.
Nevada. Nevada’s stay-at-home order is set to expire on May 15. Retail businesses, including cannabis dispensaries, can operate with curbside pickup, an option previously only open to restaurants. See reopening plan.
New Mexico. New Mexico’s stay-at-home order is set to expire on May 15. A limited reopening began in New Mexico starting May 1, with nonessential retailers allowed to offer curbside pickup, and veterinarians and other pet services allowed to reopen. Essential retail, such as grocers, are limited to 20% of their maximum capacity. Additional businesses allowed to reopen include state parks, licensed firearm retailers by appointment only, and golf courses for golf only. See partial reopen order.
Ohio. Ohio’s stay-at-home order is set to expire on May 29. Hospital, medical, dental and veterinary services that don’t require an overnight hospital stay were permitted to open on May 1; construction, distribution, manufacturing, and offices were permitted to open on May 4; and consumer, retail and service businesses are permitted to reopen on May 12. The state has issued certain “Sector Specific Operating Requirements” for businesses to reopen, as part of the “Responsible Restart Ohio” plan. See sector specific operating requirements.
Pennsylvania. Pennsylvania’s stay-at-home order expired on May 8. Golf courses, marinas, guided fishing trips and privately-owned campgrounds reopened statewide May 1. State campgrounds may reopen May 15. See partial reopen announcement.
South Carolina. South Carolina’s stay-at-home order has no set expiration date. Retail stores previously deemed nonessential, including bookstores, department stores, furniture stores, apparel stores, department stores, sporting goods stores, craft stores, music stores, flea markets, and flower stores were allowed to reopen April 20. Businesses are restricted to no more than five customers per 1,000 square feet. Salons, gyms, and restaurants are still required to be closed. See partial reopen order.
Tennessee. Tennessee’s stay-at-home order expired on April 30. Restaurants in Tennessee were allowed to reopen on April 27, and retail stores followed on April 29, so long as they operate at 50 percent capacity. The loosened restrictions apply only in Tennessee counties without their own public-health departments. Large cities, including Nashville, Memphis, and Knoxville, are allowed to set their own timelines for reopening. See partial reopen announcement.
Texas. Texas’s stay-at-home order expired on April 30. Nonessential retail, malls, movie theaters, and restaurants are allowed to reopen, but must operate at no more than 25 percent capacity. Sole proprietorships, medical and dental offices can reopen. Outdoor sports with up to four (4) people participating are allowed. Personal-care services such as hair salons and massage parlors are to remain closed until at least mid-May. See partial reopen announcement.
Vermont. Vermont’s stay-at-home order is set to expire on May 15. Outdoor and construction work, and manufacturing and distribution may begin operations with a maximum of ten (10) people in any location. Curbside pickup and delivery services, outdoor retail and libraries with curbside pickup are permitted. Farmers markets may reopen. Businesses may require customers and clients to wear masks. See partial reopen order.
Washington. Washington’s stay-at-home order is set to expire on May 31. The state has announced a phased reopening of closed businesses beginning May 5, with at least 3 weeks between each phase for monitoring conditions. Businesses in Phase 1 include certain construction, landscaping, automobile sales, car washes and curbside pickup retail. Outdoor, recreational activities such as hunting, fishing, boating, hiking and golf are permitted under Phase 1. See partial reopen announcement.
West Virginia. West Virginia’s stay-at-home order expired on May 4. The state’s reopening process began on April 27, with a phased reopening. The next phase of the reopening includes small businesses with fewer than ten (10) workers, professional services, barber shops by appointment only, outdoor dining, church services and funeral services with social distancing practices. The state will continue to monitor coronavirus cases in the reopening process. See partial reopen announcement.
Wisconsin. Wisconsin’s stay-at-home order is set to expire on May 26. The state has produced a 3-phase plan, to be implemented based on certain gating-criteria. Nonessential businesses able to operate without customer contact, such as car washes, dog groomers, and upholsterers, were allowed to open on April 29. State parks and forests, hunting and fishing on open properties, boat launches in open state properties and linear/rail trails were permitted to open on May 1. See partial reopen plan.
Guidelines for States without Shelter Orders
Iowa. Reopening has begun in 77 of the state’s 99 counties, with some limitations. Malls, gyms, libraries, and restaurants can all reopen at 50 percent capacity, while horse and dog tracks can reopen without spectators. Counties that will not reopen retail establishments include Allamakee, Benton, Black Hawk, Bremer, Dallas, Des Moines, Dubuque, Fayette, Henry, Iowa, Jasper, Johnson, Linn, Louisa, Marshall, Muscatine, Polk, Poweshiek, Scott, Tama, Washington, and Woodbury County. See partial reopen order.
Nebraska. Restaurants are permitted to allow customers inside, but at no more than 50 percent of normal capacity. Salons, massage businesses, and tattoo parlors are limited to ten (10) people at a time, with everyone wearing face coverings. Bars and indoor theaters will remain closed until May 31 in most of the state. See partial reopen order.
North Dakota. As of May 1, all businesses, including bars and personal-care services, are allowed to reopen with restrictions in place. The “North Dakota Smart Restart” protocols include operating standards for all industries, as well as specific guidance for several high-contact business sectors that were closed. See partial reopen order.
Oklahoma. Personal-care services began operating on April 24, by appointment only. Gyms, restaurants, and movie theaters began operating on May 1, with social distancing and sanitation guidelines. Phase Two of the plan, with a goal of May 15, will allow bars to reopen, and weddings and funerals with no more than ten (10) people to be held. The businesses are required to follow social distancing and sanitation guidelines released by the state’s Department of Commerce. See partial reopen order.
Utah. Though Utah never had a statewide stay-at-home order, schools and restaurants were closed. As of May 1, the state implemented a “moderate risk” protocol, that permits certain establishments to resume business, including gyms, salons, and other personal-care businesses under strict guidelines. Dine-in businesses may also resume with extreme precautions. See partial reopen order.
Wyoming. The state announced new public health orders effective May 1, allowing gyms, barber shops, hair salons, and other personal-care services to reopen under specific operating conditions designed to minimize public health risk. See partial reopen announcement.
While we are pleased to have you contact us by telephone, surface mail, electronic mail, or by facsimile transmission, contacting Kilpatrick Townsend & Stockton LLP or any of its attorneys does not create an attorney-client relationship. The formation of an attorney-client relationship requires consideration of multiple factors, including possible conflicts of interest. An attorney-client relationship is formed only when both you and the Firm have agreed to proceed with a defined engagement.
DO NOT CONVEY TO US ANY INFORMATION YOU REGARD AS CONFIDENTIAL UNTIL A FORMAL CLIENT-ATTORNEY RELATIONSHIP HAS BEEN ESTABLISHED.
If you do convey information, you recognize that we may review and disclose the information, and you agree that even if you regard the information as highly confidential and even if it is transmitted in a good faith effort to retain us, such a review does not preclude us from representing another client directly adverse to you, even in a matter where that information could be used against you.