Re-Opening Your Business, Part 2: Navigating Government Orders and Regulatory Guidance

CNN has a helpful collection of information outlining where all 50 states stand on re-opening.  There is not enough space in this blog post to go through that data, especially as each state has a slightly different approach for re-opening.  Regardless of your particular state, though, one of the fundamental components of any re-opening plan for your business is understanding the applicable governmental orders and regulatory guidance.  As I stated in my initial blog post on this topic, re-opening will be a process, and you may well plan to go forward, but have to take steps back, as you move through your path to a new normalcy in your business operations.

California, where I am at, is seeing a rapid shift in governmental orders.  On March 16^th, six Bay Area counties (plus the City of Berkeley) issued stay at home orders shuttering all but certain enumerated “essential businesses.”  On March 19^th, Governor Gavin Newsom issued a statewide stay-at home order that had the same restriction for the entire state of California.  Other counties in California followed suit, issuing their own orders.  Since then, these numerous orders have been modified several times as developments in the COVID-19 healthcare crisis have emerged at the federal, state and local levels.  On May 8^th, Governor Newsom relaxed his order to allow certain sectors of curbside retail to reopen.  In doing so, Governor Newsom announced that counties can apply for variances to allow for faster re-opening processes or they could maintain stricter controls.

The result of these well-intentioned state and local orders, though, has been a confusing patchwork of governmental requirements that have left pundits,  businesses and citizens alike scratching their heads to figure out which orders apply.  This confusion is not likely to fully abate any time soon as health, scientific, political, and economic factors are influencing the orders and policies that are being created.

In addition to these orders, various guidance documents have been issued by the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), the United States Department of Labor, and the White House.

At a high level, the White House’s Guidelines for Opening Up America Again set forth a three-phased approach intended to assist state and local officials to reopen businesses and protect lives.  The White House recommends the development and implementation of appropriate policies in accordance with federal, state and local regulations and guidance regarding:

• Social distancing and protective equipment
• Temperature checks
• Sanitation
• Use and disinfection of common and high-traffic areas
• Business travel

Diving deeper, OSHA has issued various guidance documents outlining the measures that businesses must take to protect the workforce, as well as how COVID-19 related complaints will be handled.  Additionally, the CDC recently issued updated guidance for actions that people and communities can take to slow the spread of the virus.   Given the changing understanding of the virus, this guidance has changed over the past several weeks (ex. the CDC now advises that the virus does not spread easily from touching infected surfaces).  So, frequent review of these agencies’ websites is recommended.

These guidance documents are not standards nor regulations; they create no new legal obligations.  However, they do contain recommendations that include descriptions of mandatory safety and health standards (for example:  employers are obligated to provide their workers with personal protective equipment, but the guidance notes that the exact type of PPE to be provided will depend based upon the risk of exposure to be encountered by the worker).

So, what should a prudent business seeking to re-open do?

First, you need to assess which of the various local and state orders apply to your business.  If you operate in one county, this should be relatively straightforward.  If your operations span several counties, you will need to carefully outline the requirements of each of the applicable orders to understand where they are the same and where they differ.  The counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara, for example, issued similarly-worded orders outlining several indicators that are deemed to be critical to deciding when and how to ease shelter-in-place restrictions.  These orders are more restrictive than the most recent order from Governor Newsom.  The Health Officer of Fresno County, by contrast, issued an order allowing businesses to re-open that is predicated on state and CDC guidelines.  Regardless, all re-opening plans are phased approaches that are designed to allow businesses to re-open depending on the level of risk presented by their operations.  There is no one-size fits all approach.

Second, you will need to evaluate applicable regulatory guidance, which may be more detailed in some instances than local or state shelter-in-place orders regarding risk mitigation measures.  For example, the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), requires employers to furnish each worker with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  Accordingly, OSHA recommends a framework called the “hierarchy of controls” to identify and select ways to control workplace hazards, and it has issued detailed guidance explaining how to do so.  With regard to COVID-19, these workplace controls include:

• Engineering controls (e.g., high-efficiency air filters, increasing facility ventilation rates; physical barriers to separate workstations, etc.);
• Administrative controls (ex. encouraging sick workers to remain at home, establishing alternating shifts, discontinuing non-essential travel, PPE;
• Following existing OSHA standards (ex. PPE Standards, 29 CFR 1910 Subpart I);
• Classifying worker exposure to COVID-19 (e.g., lower risk, medium, high, and very high) and adopting risk mitigation strategies based upon the exposure risk level; and
• Workforce education and training.

Third, avail yourself of the resources that are out there.  For weeks, governmental officials, regulatory agencies, and the news media have reported the minimum necessary safety controls:  social distancing, frequent handwashing, frequent cleaning, and masks.  Beyond these effective baseline protocols, though, OSHA has various programs and services to help businesses establish a safety and health program.  California has created industry-specific checklists, which can be found at the state’s coronavirus webpage.  Each county and city is also working to respond to COVID-19, most of whom have dedicated webpages with links to useful local information.  While this may seem daunting at first, as you move through each level you will see that the information presented largely coordinates with the level above it (e.g., city, county, state, federal), and you quickly see similar strategies and recommendations for re-opening businesses at all levels of government.

In my next blog post, we will go through a few industry-specific checklists to show the similarities and variances of these orders, guidelines and recommendations to particular businesses.