Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As the world slowly returns to some semblance of normalcy, the District of Columbia, Maryland, and Virginia recently announced varying plans as to when they will reopen and what reopening will look like. Virginia previously unveiled its three-phase reopening plan. Following Virginia’s lead, Maryland also announced it would follow a three-phase roadmap to reopening the state. Unlike its surrounding jurisdictions, however, the District of Columbia extended its Stay-at-Home Order and announced it is not yet ready to enact a reopening plan. D.C. also imposed mask or face covering requirements upon individuals and essential businesses in the District.
On May 13, 2020, D.C. Mayor Muriel Bowser issued Order 2020-066 (the “D.C. Order”), which extended the District of Columbia’s Stay-at-Home Order and closure of nonessential businesses, broadly outlined a plan for reopening the District, and imposed a new mask or face covering requirement for individuals and essential businesses in the District.
Stay-at-Home Order and Closure of Nonessential Business
Although COVID-19 remains widespread throughout the District of Columbia, Mayor Bowser announced that the number of COVID-19 cases and deaths has fallen below the District’s original projections. Mayor Bowser attributed this success to both residents and businesses complying with various COVID-19-related orders. Because the number of daily COVID-19 diagnoses and deaths had yet to decline in the District, however, Mayor Bowser extended the District’s Stay-at-Home Order and closure of nonessential businesses through June 8, 2020.
Pursuant to the District’s Stay-at-Home Order, individuals living in Washington, D.C. must continue to remain at their place of residence unless they are leaving for an essential purpose. Further, any individuals who leave their residence for an allowable purpose still must social distance from others not in their household. The Stay-at-Home Order also applies to individuals visiting and working in the District.
More information about the District’s Stay-at-Home Order and order closing nonessential businesses can be found here.
Mayor Bowser broadly outlined certain criteria and measures to prepare the District for a phased reopening process. While the mayor has not set a date for the District’s reopening, she announced four benchmarks that the District must meet before beginning to reopen. These benchmarks include:
- COVID-19 Case Decline. A 14-day sustained decrease in community spread of COVID-19 and a rate of transmission (i.e., the number of people a COVID-19-positive individual is likely to infect) that is below one for three consecutive days.
- Testing Capacity. The ability to conduct extensive COVID-19 testing, including the capacity to test individuals who are symptomatic, in essential roles, or who have had close contact with others who have tested positive for COVID-19.
- Health Care System Capacity. Adequate capacity in the District’s healthcare system to safely care for all patients by showing that hospitals are at less than 80% of their usual capacity over a seven-day period.
- Public Health System Capacity. Contact tracing for all COVID-19 cases and their close contacts, with the goal to provide contact tracing within 24 hours for all new cases of COVID-19 so that close contacts may be quarantined to limit the spread of the disease.
The District has met two of the benchmarks necessary to reopen—testing capacity and health care system capacity—and has acquired sufficient contact tracers for its initial reopening process. However, the District has not yet seen a 14-day sustained decrease in community spread of the virus. In addition to these benchmarks, the mayor formed a “ReOpen DC” advisory group, which is set to issue further recommendations addressing how the District can relax restrictions, while continuing to closely monitor and respond to negative metrics. These recommendations are likely to include having on hand an adequate supply of personal protective equipment (PPE).
The D.C. Order also requires certain District agencies to examine several specified topics in preparation for the eventual reopening. The Department of Parks and Recreation must determine whether any of its outdoor facilities, including park athletic fields and dog parks (but not playgrounds) may safely open to the public. This same department also must develop a plan to monitor for unsafe crowding in those spaces. In addition, the city administrator is tasked with developing a recommendation for restoring office-based and other site-based District government operations.
Mask and Face Covering Requirements
In addition, Mayor Bowser established a mask requirement for individuals and essential businesses in the District of Columbia.
Mask and Face Covering Requirements for Individuals
All individuals living in, working in, or visiting Washington, D.C. must wear a mask or face covering when engaging in the following activities:
- Essential or minimum basic operations of businesses when persons are in the presence of others. In other words, a mask or face covering is not required when someone is working alone in an office.
- Essential travel if social distance cannot be maintained while engaging in such travel. If social distance can be maintained while engaged in essential travel, a mask or face covering need not be worn.
Certain individuals are exempt from the mask or face covering requirement. The mask or face covering requirement does not apply to: (1) children under the age of nine (although masks or face coverings are still strongly recommended for children between two and nine years old); (2) homeless individuals; and (3) those individuals who cannot wear a mask or face covering due to a medical condition or disability, or who are unable to remove a mask without assistance.
Furthermore, all passengers and operators of any public or private transportation provided in the District must wear masks or face coverings.1 The public transportation subject to the D.C. Order includes Circulator buses; DC Streetcar; Washington Metropolitan Area Transit Authority (WMATA) buses, trains, and MetroAccess vehicles; and Maryland Area Regional Commuter (MARC), Virginia Railway Express (VRE), and Amtrak trains traveling in or through the District. The private transportation covered by the D.C. Order includes taxis, Transportation Network Companies (TNCs), and “other private transportation providers.” In addition, all individuals in or at a public transit facility, including train stations, Metrorail stations, and bus terminals, must wear masks or face coverings.
Mask and Face Covering Requirements for Essential Businesses
Essential businesses are also subject to a new mask/face covering requirement. Specifically, such businesses must require employees and independent contractors to wear masks or face coverings, as well as instruct these individuals on their safe use. These businesses are obligated to procure masks or face coverings for its employees, but need not do so for independent contractors. If an essential business cannot procure a mask or face covering for its employees, the employees must wear their own masks or face coverings until such can be provided by the employer.
The D.C. Order also imposes two additional obligations on essential businesses. First, essential businesses are required to post signage at their entrances with the following instructions to all employees, contractors, customers, guests, and visitors:
- “Wear a mask or face covering”;
- “Maintain six (6) feet of distance from each other person who is not part of their household”;
- “Cough or sneeze away from other people and into a tissue or one's elbow or sleeve and immediately dispose of the tissue in a safe manner”;
- “Not shake hands or engage in any other unnecessary physical contact”;
- “[A]void entering if they are exhibiting a symptom of any transmissible infectious disease such as a cough, fever, and runny nose or have a confirmed COVID-19 diagnosis” (if applicable); and
- “[S]hop quickly alone or only with members of their household” (if applicable).
Second, essential businesses must exclude any customer or visitor who is not wearing a mask or face covering. This obligation does not apply to those customers and visitors who are exempt from the mask or face covering requirement or when such an exclusion would be unlawful (e.g., a violation of the Americans with Disabilities Act).
Any individual or entity that knowingly violates the D.C. Order may be subject to civil, criminal, and administrative penalties authorized by law, including sanctions or penalties for violating D.C. Official Code § 7-2307, including civil fines or summary suspension or revocation of licenses.
Last week, Governor Larry Hogan announced that Maryland had met certain milestones in its fight against COVID-19, including a 14-day plateauing and decline of hospitalizations. As such, Governor Hogan lifted the state’s Stay-at-Home Order and replaced it with a “safer at home” policy. Maryland thus joins a number of other jurisdictions that have started implementing measures to reopen nonessential businesses.
“Safer at Home” Policy
On May 13, 2020, Governor Hogan issued Order 20-05-13-01 (the “Maryland Order”) announcing that localities in the state were permitted (but not required) to activate the first stage of Maryland Strong: Roadmap to Recovery, the governor’s plan to gradually reopen Maryland’s economy. This follows the governor’s announcement earlier this month that reopened state parks and golf courses, permitted additional outdoor activities (including boating, camping, fishing and tennis), and allowed many elective surgeries, including dental work, to resume.
The Maryland Order relaxes some of the restrictions that had been in place for more than six weeks. While gatherings of more than 10 people are still prohibited and social distancing requirements remain in place, Governor Hogan announced that religious facilities and certain nonessential businesses would be permitted to reopen beginning at 5:00 p.m. on May 15, 2020, subject to certain capacity limits and other operating requirements. Specifically:
- Retail establishments may reopen at 50% capacity unless the retail establishment is in an enclosed mall. Retail establishments in enclosed malls must remain closed unless they are also directly accessible from the outside. Retail establishments that are able to reopen must require staff to wear face coverings while working in areas open to the general public and in areas where interactions with other staff are likely (e.g., break rooms). Furthermore, retail establishments must, to the extent possible, implement physical distancing measures and post signage at each entrance advising customers of their obligation to wear face coverings as detailed in the governor’s prior Face Coverings Order.
Governor Hogan provided the following non-exhaustive list of retail establishments permitted to reopen:
- Animal adoption shelters.
- Art galleries.
- Car washes.
- Clothing and shoe stores.
- Furniture stores.
- Lawn and garden stores.
- Pawn shops.
- Pet groomers.
- Sporting goods stores.
- Tobacco and vape shops.
- Beauty salons and barber shops may reopen as well, but must require staff to wear a face covering, provide services only by appointment, operate at 50% capacity, and clean and disinfect each area where services were performed between customers. Furthermore, all customers over the age of two are required to wear a face covering while inside any such establishment, unless doing so would make it impossible for services to be performed.
- Religious facilities may open to the general public to hold services. While Governor Hogan encouraged services to be held outdoors, indoor services may be held at up to 50% capacity.
- Manufacturing businesses and facilities may open, but Governor Hogan encouraged companies to stagger employees over multiple shifts.
Other non-essential businesses, such as fitness centers, theaters, bowling alleys, and amusement parks, remain closed. Likewise, restaurant and bars remain closed except for take-out, drive-through, and delivery services.
Localities Opting Out of Reopening Plan
Several of Maryland’s largest localities have opted to delay reopening under Governor Hogan’s plan. For instance, Prince George’s County and Montgomery County, which have the highest number of COVID-19 cases, issued local stay-at-home orders that went into effect after the statewide Stay-at-Home Order expired. Baltimore City also remains closed, while Baltimore County announced a modified reopening plan that allows retail businesses to open for curbside pickup and delivery, but otherwise closes personal service establishments and indoor religious services.
Maryland has published an interactive map detailing each jurisdiction’s current operating status. This map is updated daily.
A person who knowingly and willfully violates the Maryland Order or any local order is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both.
While the DC-metro area slowly begins to reopen, which is a welcome development to many, employers will be faced with many challenges. Employers must be prepared to make significant adjustments to their facilities in order to adhere to the new requirements imposed by state and local governments, and should be prepared to keep these modifications in place for the foreseeable future. Employers must also keep in mind that all preexisting employment-related federal and state statutes and regulations continue to apply and require compliance during the COVID-19 pandemic. This includes the federal Occupational Safety and Health Act (OSHA), which requires employers to provide a safe workplace free from serious recognized hazards.
Employers facing the unique circumstances presented by the pandemic should consult counsel for guidance in complying with these laws. In addition, employers can visit the Littler COVID-19 Resources for Employers, which contains Littler’s COVID-19 Return to Work Initiative, for resources on implementing these new requirements, practical considerations that employers should keep in mind, and more.
1 The mask or face covering requirement does not apply to a public transportation operator who is in a separate compartment that is not accessible by riders.