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.
On May 18, 2020, Massachusetts Governor Charlie Baker and the Massachusetts Reopening Advisory Board released the Reopening Massachusetts Report (the “Report”), which provides details regarding the state’s four-phase return-to-work plan. The Report provides that manufacturing facilities may reopen as of May 18, 2020, and certain other businesses, including offices (outside of Boston) and laboratories, may begin reopening as soon as May 25, 2020. As discussed below, any business that seeks to reopen its doors must comply with specific requirements for social distancing, hygiene, staffing and operations, and cleaning and disinfecting.
Overview: The Four-Phase Approach
In Phase 1 (“Start”) of the Commonwealth’s four-phase approach to reopening the economy, some businesses may resume operations provided they comply with the various requirements contained in the sector-specific workplace safety standards (the “Standards”), which were issued at the same time as the Report. Those businesses include: office spaces, manufacturing facilities, laboratories, construction, hair salons/barbershops, pet-grooming businesses, and car washes. The Standards (summarized below) will be updated as the Commonwealth moves to a different phase of the four-phase reopening plan, and are in addition to the more general Mandatory Workplace Safety Standards required for all businesses, regardless of sector or industry, which were announced on May 11, 2020 (although there is a substantial amount of overlap between the two).
In advance of Phase 2 (“Cautious”), Massachusetts will partner with retail, restaurant, lodging, and additional personal services industries to draft Sector-Specific Protocols for reopening. Likewise, in advance of Phase 3 (“Vigilant”), the Commonwealth will draft plans for the reopening of bars, arts and entertainment venues (including casinos), gyms, and museums. Nightclubs and large venues will not be permitted to resume operations until Phase 4 (the “New Normal”).
Requirements for Reopening Phase I Businesses
Before discussing the specific COVID-19 workplace safety standards applicable to businesses, it is important to emphasize four things. First is the issue of timing: office spaces outside of Boston may open on May 25, 2020, but office spaces in Boston may not open until June 1, 2020. Regardless of location, manufacturing facilities were able to open on May 18, 2020, and laboratories may open May 25, 2020. Second, the Commonwealth has stated that workers “must continue to telework if feasible.” Third, the standards issued by the Commonwealth are “minimum requirements only and are not exclusive or exhaustive.” Fourth, “no activity in office spaces/manufacturing facilities/laboratories can occur without meeting” the safety standards discussed below.
The safety standards fall within four categories: social distancing; hygiene; staffing and operations; and cleaning and disinfecting.
Offices: First, to ensure appropriate social distancing, the Standards establish occupancy limits for offices. Specifically, businesses generally must limit occupancy within their office space to no more than 25 percent of (a) the maximum occupancy level specified in any certificate of occupancy or similar permit or as provided for under the state building code, or (b) the business or organization’s typical occupancy as of March 1, 2020. There are two exceptions to this general rule: (1) a business that has been operating as an “essential service” has until July 1, 2020 to comply with this limitation; and (2) businesses may exceed this maximum occupancy level “based on a demonstrated need for relief based on public health or public safety considerations or where strict compliance may interfere with the continued delivery of critical services.”
The Standards require offices, laboratories, manufacturing businesses to:
- Ensure separation of six feet or more between individuals, unless this creates a safety hazard due to the nature of the work or the configuration of the workspace
- Close or reconfigure worker common spaces and high-density areas where workers are likely to congregate (e.g., break rooms, eating areas) to allow six feet of physical distancing, and redesign work stations to ensure physical distancing (e.g., separate tables, use distance markers to assure spacing)
- Ensure that cafeterias operate with only prepackaged food and practice physical distancing and appropriate hygiene measures
- Erect physical partitions to separate workstations that cannot be spaced out (partitions must be taller than a standing worker)
- Establish directional hallways and passageways for foot traffic if possible, to minimize contact and post clearly visible signage regarding these policies
- Limit visitors where feasible, and avoid congregation in common areas (e.g., lobbies)
- Designate assigned working areas (e.g., floor, building) to individuals where possible to limit movement throughout the facility and to limit contact between workers
- Stagger work schedules and improve ventilation for enclosed spaces where possible (e.g., open doors and windows)
- Limit meeting sizes, ensure six feet of social distancing, and encourage remote participation
- Stagger lunch and break times, regulating the maximum number of people in one place and ensuring at least six feet of physical distancing
- Minimize the use of confined spaces (e.g., elevators, control rooms, vehicles) by more than one individual at a time; all workers in such spaces at the same time are required to wear face coverings
Next, the Standards require businesses to adopt appropriate hygiene protocols.
Face Coverings: All hygiene protocols must include face coverings. In an office, face coverings are required when social distancing of six feet is not possible, except where unsafe due to a medical condition or disability. However, the Report instructs that in a laboratory or manufacturing facility, workers must use face coverings or face masks except where doing so may introduce a safety hazard to workers or where an individual is unable to wear a face covering due to a medical condition or disability.
Pursuant to these protocols, businesses must further:
- Ensure access to handwashing facilities on site, including soap and running water, wherever possible
- Encourage frequent handwashing; alcohol-based hand sanitizers with at least 60% alcohol may be used as an alternative
- Supply workers with adequate cleaning products (e.g., sanitizer, disinfecting wipes)
- Require regular and not less than daily cleaning and sanitation of all high-touch areas such as workstations, door handles, and restrooms
- Avoid sharing office/laboratory materials and equipment or disinfect materials and equipment between use (e.g., telephones, fax machines in an office, goggles in a laboratory)
Businesses are required to post “visible signage throughout” the worksite “to remind workers of the hygiene and safety protocols.”
Staffing and Operations
Third, the Standards instruct all businesses to:
- Provide training to workers on up-to-date safety information and precautions, including hygiene and other measures aimed at reducing disease transmission, including:
- Social distancing, hand-washing, proper use of face coverings
- Self-screening at home, including temperature or symptom checks
- Importance of not coming to work if ill
- When to seek medical attention if symptoms become severe
- Which underlying health conditions may make individuals more susceptible to contracting and suffering from a severe case of the virus
- Have workers continue to telework if feasible (e.g., office work, data analysis); external meetings should be remote to reduce density in the office
- Establish adjusted workplace hours and shifts for workers (if working in-person, leverage working teams with different schedules or staggered arrival/departure) to minimize contact across workers and reduce congestion at entry points
- Limit visitors and service providers on site; shipping and deliveries should be completed in designated areas
- Limit business-sponsored travel and comply with state and federal travel restrictions/guidelines
- Workers must stay home if feeling ill
- Workers who are particularly vulnerable to COVID-19 according to the Centers for Disease Control (e.g., due to age or underlying conditions) are encouraged to stay home or arrange an alternative work assignment
- Workers are strongly encouraged to self-identify symptoms or any close contact with a known or suspected COVID-19 case to the employer
- Encourage workers who test positive for COVID-19 to disclose that information to the employer for purposes of cleaning/disinfecting and contact tracing. If the employer is notified of a positive case at the workplace, the employer should notify the local Board of Health (LBOH) where the workplace is located and work with them to trace likely contacts in the workplace and advise workers to isolate and self-quarantine. Testing of other workers may be recommended consistent with guidance and / or at the request of the LBOH
Offices: Offices also must establish and communicate a worksite-specific COVID-19 Prevention Plan. Among other items, the plan must include:
- Contact information for local health authorities, including the MA Department of Public Health, and the local/municipal health authority
- Regular evaluations of all workspaces to ensure compliance with all federal, state and local guidelines
- Isolation, contact tracing, and communication plan if a worker is diagnosed as positive with COVID-19, or comes into close contact (within six feet for 10 minutes or more) with an individual diagnosed with COVID-19
Laboratories: Businesses must restrict access of office workers to lab or production facilities and segment office/support personnel to specific areas of the facility.
Manufacturing: Facilities with highly manual work should reopen in a gradual/phased approach, adjusting operations and work scheduling (working teams with different schedules or designated staggered arrival/departure time) to reduce density in the facility, minimize contact across workers and prevent congestion.
In addition, businesses are required to (a) post notice to workers and customers of important health information and relevant safety measures as outlined in government guidelines, and (b) maintain a log of everyone who comes in contact with the site to enable contact tracing, including temporary visitors (e.g., those doing material drop-offs).
Cleaning and Disinfecting
Fourth and finally, the Standards require businesses to conduct frequent cleanings and disinfections of the site. These cleanings should occur at least daily and more frequently if feasible. Moreover, businesses must: (1) keep cleaning logs that include the date, time, and scope of the cleaning; (2) conduct frequent disinfecting of heavy transit areas and high-touch surfaces (e.g., doorknobs, elevator buttons, staircases, vending machine, bathrooms); and (3) clean shared spaces (e.g., conference rooms) between use and supply cleaning products (e.g., sanitizer, disinfecting wipes).
The Standards also provide that “[i]n event of a positive case,” the site must be shut down so that “a deep cleaning and disinfecting of the workplace” can occur.
Requirements for All Businesses
Regardless of the type of business, all Phase I businesses are required to have:
- A COVID-19 Control Plan: The Commonwealth has provided a template that satisfies the written control plan requirement for self-certification of compliance with the mandatory safety standards for operation in the COVID-19 reopening period.
- A Compliance Attestation Poster: The Commonwealth has issued a poster that customer-facing businesses are required to print, sign, and post in an area within the business premises that is visible to workers and visitors.
- Employer and Worker Posters: The Commonwealth has issued posters that businesses must display within the business premises to describe the rules for maintaining social distancing, hygiene protocols, and cleaning and disinfecting.
We anticipate that the Commonwealth will be issuing additional guidance for businesses going forward. That guidance may update or revise some of the requirements contained in the Report and the Standards, and the Standards advise that businesses are responsible for complying with any updated guidelines. Therefore, businesses in the Commonwealth that seek to reopen their doors in the coming weeks are encouraged to speak with experienced employment law counsel to ensure they are in compliance with the latest requirements.