Massachusetts Begins Partial Reopening Plan, Offers Industry-Specific Guidance

Massachusetts is beginning to reopen for business, with strict rules about how businesses may bring workers back to the workplace. On May 18, the commonwealth issued its phased reopening plan following the closure of all nonessential businesses due to the coronavirus (COVID-19) public health emergency. This LawFlash discusses the government’s rules for the reopening process, including industry-specific guidance.

Phase I Opening of Businesses and Other Organizations

As a threshold matter, the phased reopening gives businesses permission to reopen, but reopening is not mandatory. On May 18, the following businesses will be eligible to reopen, subject to their ability to comply with all mandatory safety standards, summarized below:

• Essential businesses may stay open and continue to operate, but must self-certify as to compliance with the generally applicable and sector-specific protocols set forth below by May 25
• Manufacturing: businesses and other organizations engaged in the making, altering, repairing, finishing, or adapting for any article or part
• Construction
• Places of worship: churches, temples, mosques, and other places of worship
• Firearms retailers and shooting ranges

On May 25, the following businesses will be eligible to reopen, subject to their ability to comply with all mandatory safety standards, summarized below.

• Laboratory and life sciences facilities: businesses and other organizations operating within facilities equipped and used for scientific experiments, research, or for the manufacture of drugs, chemicals, or similar products
• Offices, excluding those in the City of Boston. However, work from home is strongly encouraged and businesses should restrict workforce presence to less than 25% maximum occupancy
• Hair salons and barbershops, by appointment only
• Pet grooming by appointment only (curbside pet drop-off and pickup)
• Car washing, exterior car washing allowed
• Certain outdoor recreational facilities
• Drive-in movie theatres
• Retail business (curbside pickup only, subject to additional guidance)

On June 1, offices in Boston may reopen, subject to the restrictions set forth above.

Phase I will last a minimum of three weeks and could last longer before moving to Phase II.

Sector-Specific Protocols

On May 19, the Commonwealth published industry-specific detailed guidelines for the following industries allowed to open during Phase I: (1) manufacturing; (2) construction (including construction projects that are restarting); (3) places of worship; (4) offices; (5) car washes; (6) hair salons and barber shops; (7) pet groomers; (8) laboratories; and (9) health and human services. These detailed guidelines are designed to address the particular circumstances and operational needs of specific workplace sectors.

While the summary guidelines are helpful, the detailed guidelines set forth the binding minimum standards for each industry. Although the requirements differ somewhat between industries, the following additional requirements apply generally across industries. The guidance is very specific, and businesses should review it in full and implement appropriate measures before reopening.

• Social Distancing
  • All persons should remain six feet apart to the greatest extent possible, both inside and outside workplaces
  • Establish protocols to ensure employees can practice adequate social distancing
  • Provide signage for safe social distancing
  • Require face coverings or masks for all employees
• Hygiene Protocol
  • Provide hand-washing capabilities throughout the workplace
  • Ensure frequent hand washing by employees and adequate supplies to do so
  • Provide regular sanitization of high touch areas, such as workstations, equipment, screens, doorknobs, and restrooms throughout worksite
• Staffing and Operations
  • Provide training for employees regarding the social distancing and hygiene protocols
  • Employees who are displaying COVID-19-like symptoms do not report to work
  • Establish a plan for employees getting ill from COVID-19 at work, and a return-to-work plan
• Cleaning and Disinfecting
  • Establish and maintain cleaning protocols specific to the business
  • When an active employee is diagnosed with COVID-19, cleaning and disinfecting must be performed
  • Disinfection of all common surfaces must take place at intervals appropriate to each workplaces

All of the above businesses/organizations permitted to open are required to self-certify compliance with all applicable general and sector-specific rules. The self-certification need not be submitted to a state agency but must be retained on the premises of the business and provided in the event of an inspection. Businesses are also required to sign a poster, attesting that they are in compliance with the applicable general and sector-specific rules.

Key Takeaways for Businesses

Businesses looking to reopen or expand their workplace anywhere in the Massachusetts need to be aware of the commonwealth’s detailed guidelines and requirements. Businesses should be especially mindful of the industry-specific guidance and should ensure that they have taken effective measures to ensure their workplaces are safe for employees and guests alike. Common steps Massachusetts employers are required to implement prior to reopening are establishing a broad social distancing plan, creating a workplace safety plan, developing communications to employees about these plans, implementing COVID-19 symptom screening, including self-screening, training all employees on up-to-date safety information and training screeners and managers on responsible and consistent implementation of these plans, updating cleaning protocols, taking steps to reduce the number of people in the workplace to permissible numbers, and developing protocol for when an employee is infected, including a contact tracing protocol and script.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Boston
Laurie Cerveny
Siobhan Mee

New York/Boston
Douglas Schwarz