On May 18, 2020, Massachusetts Governor Charlie Baker released clarifying details with respect to the Commonwealth’s Four-Phase Approach to the re-opening of the Massachusetts economy. All published details regarding the Four-Phase Approach are now aggregated and contained on a newly created government website (the “Re-Opening Website”).

The Re-Opening Website contains:

• Specific, detailed descriptions of each Phase of the of Four-Phase Approach.
• Industry specific business re-opening timelines.
• General Workplace safety and sanitation guidelines.
• Industry specific safety protocols and best practices.
• Enforcement guidelines for safety compliance.
• Information related to the acquisition channels for personal protection equipment (“PPE”) and sanitation supplies that are otherwise limited in the market place.

Massachusetts employers must familiarize themselves with the information, and comply with the legal requirements, collected in the Re-Opening Website, as a prerequisite to re-opening.

In addition to releasing detailed information concerning the Four Phase Approach, the Governor also implemented “Phase I: Start” of that approach, and authorized certain businesses to recommence operations, subject to safety standard compliance, effective immediately.

The key elements of the Phase I: Start plan are below:

“ESSENTIAL BUSINESSES” REMAIN OPEN, SUBJECT TO NEW SAFETY GUIDELINES

According to the Phase I: Start plan, businesses already designated as “COVID-19 Essential Services” are authorized to remain in business. However, such Essential Businesses must comply with new, “General COVID-19 Business Guidance” by May 25, 2020. Specifically, by May 25, 2020, Essential Businesses must:

• Comply with the Commonwealth’s new Mandatory Workplace Safety Standards, which create general, minimum standards for social distancing, hygiene, staffing and operations, and cleaning and sanitation that are specifically designed to limit infection risks associated with business operating during COVID-19 periods.

• Create a written “COVID-19 Control Plan,” based on this template.

• Complete, sign, and post a “Compliance Attestation Poster” in an area within the business premises that is visible to workers and visitors.

• Post Employer and Worker posters – posters that businesses can print and display within the business premises to describe the rules for maintaining social distancing, hygiene protocols, and cleaning and disinfecting.

NEW INDUSTRY SECTORS PERMITTED TO RE-OPEN UPON MEETING SAFETY STANDARDS

The Phase I: Start plan also authorizes certain non-COVID-19 Essential Services, in the following industry sectors (“Phase I Authorized Businesses”), to re-commence operations according to specific times frames, contingent on complying with certain industry specific safety standards and protocols, as summarized below:

Construction:

• Permitted to re-open as soon as May 18, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to the construction industry.

Manufacturing:

• Permitted to re-open as soon as May 18, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to the manufacturing industry.

Places of Worship:

• Permitted to re-open as soon as May 18, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to places of worship.

Office Spaces Outside of Boston:

• Permitted to re-open as soon as May 25, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to office spaces.

Boston Office Spaces:

• Permitted to re-open as soon as June 1, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to office spaces.

Laboratories:

• Permitted to re-open as soon as May 25, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to laboratories.

Hair Salons and Barbershops:

• Permitted to re-open as soon as May 25, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to hair salons and barbershops.

Car Washes:

• Permitted to re-open as soon as May 25, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to car washes.

Pet Grooming:

• Permitted to re-open as soon as May 25, 2020.
• Preconditions to re-opening:
  – Comply with the General COVID-19 Business Guidance (described above); and
  – Comply with safety protocols specific to the pet grooming industry.

Phase I Authorized Businesses are required to self-certify compliance with the above standards and protocols prior to re-opening. Phase I Authorized Businesses must be prepared, however, to produce evidence that supports such self-certification, if requested by an enforcement agency. 

TELEWORKING IS STILL REQUIRED, IF FEASIBLE

A core theme of the Phase I: Start plan is the idea that business re-openings should be accomplished through strategies that limit individual interactions. It should be noted that the Phase I: Start plan does not imply that Phase I Authorized Businesses are permitted to recall all employees to the workplace. Rather, each of the industry specific safety protocols instruct that “workers must continue to telework if feasible.” In other words, under the Phase I: Start plan, even though Phase I Authorized Businesses are permitted to recommence business operations, such employers may not recall employees to commercial work environments, if such employees are otherwise able to perform the material aspects of their job functions remotely. 

ENFORCEMENT

The Phase I: Start plan instructs that applicable safety standards and protocols shall be enforced, jointly, by the Massachusetts Department of Labor Standards, the Massachusetts Department of Public Health, and municipal boards of health.

Enforcement will scale from: verbal consultation and redirection, to written redirection, to fines, and, finally, to cease-and-desist letters.

It should be noted: The Phase I: Start plan provides minimum, state-wide standards for Essential Businesses and Phase I Authorized Businesses to recommence operations. Municipalities remain authorized to adopt more restrictive requirements than adopted in the Phase I: Start plan. As such, specific businesses and places of worship that may fall within the Phase I: Start plan authorizations must also comply with any local ordinances that may restrict their operations. 

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.

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