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.
Updated May 16, 2020
With Phase 1 of the “Reopening RI” framework set to commence on May 9, 2020, certain non-critical businesses will be able to resume operations. A list of businesses eligible to reopen in Phase 1 is available here. On May 6, 2020, Governor Raimondo and the Rhode Island Department of Health (RIDOH) released “Phase 1: General Business Guidelines” and draft regulations (subsequently promulgated on May 8, 2020) designed to assist businesses in complying with rules surrounding reopening. These guidelines apply to both businesses reopening and those critical infrastructure businesses continuing operations, with some limitations. Businesses reopening under Phase 1 must comply with these regulations before reopening, while critical infrastructure businesses that were operating as of May 6, 2020, must comply with the new measures by May 15, 2020.
This guidance gives Rhode Island employers a glimpse into what to expect during Phase 1 and in the upcoming weeks. It is important for employers to regularly monitor the reopeningri.com website, as we fully expect the state to provide amended guidance as the various phases of reopening commence.1
Develop a Written “COVID-19 Control Plan”
All businesses must develop a written COVID-19 Control Plan, which outlines how the business intends to prevent the spread of COVID-19 in its workplace. This written plan should be in place by May 18, 2020, for all businesses planning to operate when Phase 1 starts. Though businesses are not required to submit plans for state agency approval, the plans must be made available to the RIDOH in the event of an inspection or outbreak.2 While businesses are free to create their own plans, the state has provided a template. All plans must address five broad categories: (1) social distancing procedures; (2) procedures for ensuring the wearing of face coverings; (3) procedures for cleaning and decontaminating surfaces; (4) procedure for responding to positive cases or outbreaks (including designating a point of contact for the RIDOH); and (5) procedures for minimizing access to the workplace by COVID-19-positive individuals.
Complete the Reopening Checklist
Non-critical retailers reopening for Phase 1 must also complete and sign a “reopening checklist” by May 11, 2020. The checklist contains four discrete questions indicating these businesses are complying with cleaning procedures, are requiring face coverings, are screening all who enter the premises, and have developed the written COVID-19 Control Plan, as set forth above. Critical infrastructure businesses already operating as of May 6, 2020 are required to complete and sign the checklist by May 18, 2020. All businesses must post the checklist in an area that is visible to employees and visitors. The checklist suggests that non-critical retailers may conduct the necessary customer screenings simply by posting a notice that no customers may enter if they are experiencing COVID-19 symptoms, or are COVID-19 positive.
Employee and Public Notices Required
- Post Informational Notices: All businesses must post notices educating employees, customers, and visitors about how to protect themselves in accordance with RIDOH regulations. The posters should describe the business’s rules for wearing face coverings, maintaining social distancing, and specifying that sick individuals should stay home. Posters encouraging healthy handwashing are recommended in common areas and near handwashing stations. These posters must be placed at entrances and in common areas, such as bathrooms or near handwashing stations. Acceptable posters are available here.
- Post Access Screening Notices: Businesses should post informational notices communicating access screening requirements, as appropriate, depending on the business’s method of screening.
- Post Reopening Checklist: All businesses must post the reopening checklist described above in an area that is visible to employees and visitors.
- Disseminate Materials Describing Phase 1 Operations: Businesses are encouraged to develop a communications plan to explain aspects of its Phase 1 operations to staff, visitors, community members, and other appropriate target audiences. Businesses should determine appropriate materials and channels for communicating this information, such as a one-pager or posting information and FAQs to its website, considering language barriers or physical impairments that could impact understanding.
Other Business Guidelines
In addition to the foregoing, businesses must adhere to the following specific guidance:
- Cleaning Procedures: Businesses must implement industry-appropriate cleaning and disinfecting procedures, in accordance with the Centers for Disease Control (CDC) and RIDOH guidance. At a minimum, businesses must perform daily cleanings. Businesses should maintain records documenting the date, time, location, and procedures for cleaning activities. High-touch areas should be cleaned more frequently. Industry-specific guidance is available here. Sector-specific guidance for non-critical retailers is also available here. Additional sector-specific guidance is anticipated.
- Access Screening Procedures: Businesses must establish, at a minimum, symptom-screening and COVID-19 risk procedures to screen anyone entering an establishment. Businesses should deny entry to people whose screening responses indicate they are sick, or who show visible signs of illness. As set forth above, the checklist provided suggests that retailers may conduct the necessary customer screenings simply by posting a notice. Screening can also be done verbally, by app or phone, or through another method of the business’s choosing. Supplemental screening through temperature checks is permissible.
- Responding to Cases of Illness: Employees who become ill during the workday must be sent home immediately. The employer should clear the impacted area and perform cleaning and disinfection, in accordance with CDC guidance, which includes a deep cleaning of all “touchpoints” throughout the impacted area. If an employee tests positive, the business must immediately contact the RIDOH at 401-222-8022 or 211 after hours, to assist with contact tracing.
- Face Masks and Other Personal Protective Equipment: All employees and visitors are required to wear face coverings. Businesses are not required, however, to refuse access to customers not wearing a face covering. Employers must provide employees with appropriate face coverings. Certain industry-specific safety regulations, laws, and guidelines may require employees to wear more extensive face coverings, such as N-95 masks. Note that individuals suffering from specific health conditions may be exempted from the requirement to wear a face covering. Employees are also exempted from the face covering requirement if they can easily, continuously, and measurably maintain at least six feet of distance from other people at all times.
- Access to Cleaning Materials and Hand Hygiene: Businesses must ensure individuals entering the premises (including customers and visitors) have ready access to a handwashing station with soap, running water, and/or hand sanitizer at all times. Businesses must provide employees with cleaning materials to wipe down commonly used surfaces. Businesses must give employees time to wash their hands.
- Space and Occupancy Limits: Businesses must follow guidance from the RIDOH and the CDC regarding gathering sizes and social distancing. Gathering-size restrictions are anticipated to change over time. With regard to social distancing, individuals must remain six feet apart, whenever feasible, and wear a cloth face covering mask, as specified above. If social distancing is not feasible, individuals must minimize time in violation of social distancing, and additional precautions should be taken. Operations that cannot be executed with social distancing should be documented by businesses in the written COVID-19 Control Plan, described above.
Employer Designated Liaison
Businesses must designate at least one representative to work with the RIDOH on testing employees, contact tracing, case investigation, isolation and quarantine, and other pertinent follow-up relating to case outbreaks and containment. Businesses are also encouraged to develop a training plan, which may be included in the Control Plan, to ensure employees are able to comply with safety requirements.
Businesses should consider the practical implications of implementing the RIDOH’s regulations, including potential liability. The regulations contain penalties for businesses that are out of compliance, including civil penalties increasing in severity for each subsequent violation.
The business guidance and regulations leave some open questions for employers. The rules on social distancing in a small workspace are somewhat unclear. In addition, the template plan indicates employers should promulgate a COVID-19 “sick policy,” and notes employers should ensure “sick policies accommodate any quarantine or any other directed isolation of the personnel ‘team’ or ‘pod’ in which a positive is located.” Depending on the circumstances, however, employers may not be obligated under the law to provide paid leave for every such request. We recommend consulting with your legal counsel concerning any leave of absence or time off requests relating to COVID-19.
As Governor Raimondo implements the various phases of the Reopening RI framework, applicable rules and regulations are expected to change. Littler will continue to provide updates of significant developments as the reopening unfolds.
1 The information containing in this article is pertinent to Phase 1 reopening and current as of May 8, 2020.
2 The documentation concerning the checklist discussed below currently indicates the plan must be submitted, however, the guidelines are clear that the plan is to be maintained at the workplace and not submitted to the RIDOH. Hopefully, the checklist will be updated to eliminate this seeming conflict, and make clear that plans need not be submitted to RIDOH as a matter of course.