Massachusetts Governor Issues Phase 2 Reopening Order Along With Sector-Specific Guidance for Retail Stores and Childcare Programs

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Seyfarth Synopsis: On June 1, 2020, Massachusetts Governor Charlie Baker issued an Executive Order providing details as to which businesses and organizations may reopen during Phase 2 of the state’s reopening plan. The state also released mandatory sector-specific guidelines applicable to businesses permitted to reopen during Phase 2.

As we previously reported here, Massachusetts Governor Charlie Baker has introduced a multi-phased approach to reopening Massachusetts businesses after the COVID-19 shutdowns. The state is currently in Phase 1 of its reopening plan, but we expect Governor Baker to announce on June 6, 2020 whether the state will enter Phase 2 on June 8, 2020. Yesterday, Governor Baker issued COVID-19 Order No. 35, which authorizes certain businesses and organizations poised to reopen under Phase 2 to undertake “advance preparations” for reopening. These businesses may allow workers to return to their physical workplaces and facilities immediately for the purpose of preparing the premises to comply with applicable mandatory health and safety standards.

Businesses permitted to reopen during Phase 2 include retail stores and shopping malls, restaurants, hotels and other lodgings, and childcare programs, among others. We addressed the sector-specific protocols for hotels and restaurants here. We highlight some of the sector-specific workplace safety standards applicable to retail stores and childcare programs below.

Guidance Applicable to Retail Stores

Non-essential retailers may open their brick-and-mortar facilities as part of Phase 2, provided that they comply with mandatory health and safety standards, including with regard to Social Distancing, Hygiene Protocols, and Staffing and Operations. (Non-essential retail was permitted to be open in Phase 1 only for curbside pickup and remote order fulfillment.) When Governor Baker authorizes retail businesses to reopen in Phase 2, retailers that have remained open providing Essential Services will have one week to comply with these sector-specific health and safety protocols.

Social Distancing:

• Capacity. Retail stores must limit the number of people in their stores to the greater of the following: (1) Eight people (including staff) per 1,000 square feet of accessible, indoor space; or (2) 40% of the store’s maximum permitted occupancy per its permit on record. If the permit does not list a maximum occupancy, the calculation should be based on eight people per 1,000 square feet.
• Face Coverings. Retailers must require face coverings for workers and customers, except where unsafe due to a medical condition or disability.
• Physical Distance. Where possible, retailers must ensure at least six feet of separation between individuals – this includes installing visual social distancing markers to encourage customers to remain 6 feet apart when they are queued up to enter the store, to make payments, to use the restroom, etc. Where it is not possible to maintain six feet of distance, retailers must install physical barriers. To assist in social distancing efforts as customers move through the store, retailers must, where possible, establish directional aisles, designate an entrance and an exit to the store, and post clearly visible signage to make customers aware of these practices. Retailers are also encouraged to implement contactless payment methods. And they must stagger lunch and break times and close or reconfigure worker common spaces like break rooms and eating areas to allow social distancing.
• Enclosed Shopping Malls. Enclosed shopping malls and similar indoor multi-tenant retail spaces must close seating areas in food courts (vendors may offer takeout and delivery only); they must also close children’s play areas and arcades. Retailers cannot allow sampling or application of personal goods (like perfume or lotion). Retailers must close salad bars and other self-serve stations and prohibit free samples or tastings.
• Other. In clothing stores, fitting rooms must remain closed – customers cannot try on clothes. Customers should be encouraged to use delivery, curbside pickup, or “appointment only shopping” where the retailer offers such services. Grocery stores and retail stores with a pharmacy department must provide and advertise at least one dedicated hour each day of operation, in the early morning, for adults age 60 and older.

Cleaning, Disinfecting, and Hygiene Protocols:

• Cleaning. Retailers must disinfect employee-shared equipment such as cash registers and make sure workers have access to appropriate cleaning products. Retailers must clean and disinfect the site at least daily, and keep cleaning logs that show the date, time, and scope of each cleaning. Heavy transit areas and high-touch surfaces must be more frequently disinfected. If the store is exposed to a positive case of COVID-19, the store must close for disinfection in accordance with current CDC guidance.
• Hygiene. Where possible, retailers must make handwashing facilities (with soap and running water) available on site. Retailers must also provide alcohol-based hand sanitizers (at least 60% alcohol) at entrances and throughout the premises for workers and customers. Retailers must prohibit the use of reusable bags.
• Signage. Retail stores must post visible signage to remind workers of hygiene and safety protocols.

Staffing and Operations:

• Training. Retailers must train workers on social distancing protocols, hand-washing, use of face coverings, and self-screening for symptoms. Retailers must require employees to stay home if they feel ill.
• Scheduling. Retailers should adjust hours and shifts to minimize the number of workers coming and going at any one time and should reduce operating hours to accommodate off-hour sanitation and cleaning.
• Contact Tracing. The business should notify the local Board of Health if notified of a positive case at the site and should collaborate to trace contacts and advise workers to isolate and self-quarantine as appropriate.
• Other Contacts. Shipping and deliveries should take place in designated areas. Retailers that provide in-home delivery of products should screen customers for symptoms before entering homes.
• Signage. Retailers must post notice to workers and customers of the information and safety measures outlined in the Commonwealth’s Mandatory Safety Standards for Workplace (https://www.mass.gov/info-details/reopening-mandatory-safety-standards-for-workplaces).

Guidance Applicable to Child Care Programs

Child care programs and day camps may open as part of Phase 2, provided that they comply with required health and safety standards. Yesterday, the Department of Early Education and Care (EEC) released the Minimum Requirements for Health and Safety for reopening these types of programs in Massachusetts. The Minimum Requirements outline extensive health and safety standards required to reopen these programs. We outline some of those standards here:

Preparedness and Planning:

• Planning. Programs must develop reopening plans that include (1) specific cleaning instructions and schedules (and maintaining an adequate inventory of supplies); (2) identifying and managing exposure to COVID-19 (including specific protocols for daily symptom screenings); (3) isolating and discharging sick, symptomatic, and exposed children or staff; (4) collaborating with local and state health departments to ensure local protocols and guidelines are followed; (5) safe vendor deliveries; (6) transportation practices that ensure physical distancing and hand hygiene practices; (7) handling program closings, staff absences, and gaps in child attendance and alerting local health officials of such; (8) administering medication to children with asthma and other chronic illness (nebulizer use is prohibited); (9) coordinating space and facilitating support services for children like those on Individualized Education Programs (IEPs); and (10) sharing information and guidelines with parents (includes a provision that parents provide daily update on status of children when dropped off to the program).
• Preparing. Programs must prepare the program environment to promote these health and safety requirements. This includes preparing (1) materials and equipment to be used by children to minimize sharing and promote distancing; (2) cleaning, sanitizing, and disinfecting solutions and safely storing them; (3) the physical space to promote social distancing; (4) storage areas so that belongings do not touch; (5) to close drinking fountains that require contact for use; (6) to ensure ventilation systems operate properly and increase circulation of outdoor air; and (7) to ensure that water systems and features are safe after any prolonged facility shutdown.

Staffing and Operations:

• Daily Operations. Programs must cancel field trips, inter-group events, and extracurricular activities. Non-essential adults cannot enter the premises. Programs must maintain appropriate documentation regarding immunizations and medical conditions.
• Staffing. The Minimum Requirements document contains specific staffing requirements for different types of programs. All programs must ensure that staff understand how COVID-19 is spread, how symptoms manifest, and when to seek medical assistance for themselves and others. (Programs must provide flexible sick leave policies.) The program must designate a known staff member to serve as the point-person for COVID-19 concerns. Staff must be trained on cleaning, use of PPE, and other relevant protocols.

Group Sizes and Ratios:

• The Minimum Requirements document provides mandatory staff-to-child ratios (by age group) and maximum group sizes to ensure that staff are able to ensure compliance with the health safety requirements.

Screening and Monitoring of Children and Staff:

• Daily Screening. All children and staff must be screened for symptoms each day before entering the program space. This includes a mandatory non-contact temperature check and screening questions (the list of symptoms to inquire about is included in the Minimum Requirements document). The screening also includes a visual inspection for signs of illness. Programs must record and maintain responses to, and results from, the daily screening. Staff must follow specific protocol regarding hygiene and PPE when conducting daily screenings. In addition, all staff, parents, and children must be directed to self-screen at home before they come to the program, and staff and parents must sign a written attestation each day about household contacts with COVID-19.
• Regular Monitoring. Staff must monitor children throughout the day for any symptoms of illness.

Isolation and Discharge of Sick Children and Staff:

• Planning for Isolation and Discharge. The program must have a plan to isolate children or staff who become sick and must supervise isolated children at all times. The program must make face coverings available for those who become symptomatic – and must be prepared to provide emergency staff coverage in the event of illness.
• If a Child Becomes Symptomatic. Programs must isolate the child from other children, minimize exposure to staff, provide and require face covering (if older than 2), and contact the sick child’s parent to take the child home.
• If Child or Staff Contracts COVID-19. Those who test positive or are presumptively positive cannot return to the program until they have been cleared by a medical professional to do so. The program must engage in contact tracing to determine who had close contact with the ill person during the relevant window.
• he program must notify employees and families about exposure. If a child or staff member tests positive, the program must notify the local board of health and funding and licensing agencies.
• Self-Isolating Following Exposure or Potential Exposure. If a staff member or child is exposed to COVID-19 (through the program or not), they must be sent home (symptomatic or not) for at least 14 days and the program must contact the local board of health for guidance with respect to other children and staff. If someone who has been exposed to COVID-19 later tests positive (or is presumptively positive), they must stay home for at least 10 days after symptom onset.

Hygiene and Health Practices:

• Resources and Supplies. Programs must make sure they have access to enough soap and hand sanitizer (60% alcohol or more) to ensure regular, effective hygiene behaviors. (Children must be monitored when using hand sanitizer.) Must post instructions for handwashing near every handwashing sink.
• When to Wash Hands. The Minimum Requirements document provides list of 13 specific instances when children and staff must wash their hands, including when they enter the program space, before and after eating, after using any shared equipment, before entering vehicles used for transportation of children, and more.

Personal Protective Equipment (PPE) and Face Mask Coverings:

• Face and Mask Coverings. Programs must encourage staff use of face coverings during the day – and require it when 6 feet of distance cannot be maintained. Programs must train staff on proper use of face coverings. Parents and guardians must wear face masks when on the premises and during drop-off and pick-up. When children cannot maintain 6 feet of distance from others, they should be encouraged to wear face coverings provided that they are older than 2 and their parent or guardian approves. (Staff must supervise children wearing masks.) Families should provide masks for children, but where they cannot, programs should be prepared to provide them. Cloth masks must be cleaned each day.
• Exceptions to Use of Face Masks/Coverings. Children younger than 2 and those who cannot safely wear a mask do not need to do so.
• When to Use Gloves. Those conducting daily symptom screenings, those preparing food, and those responsible for diapering must wear gloves during those activities.

Cleaning, Sanitizing, and Disinfecting:

• Resources and Supplies – and Proper Usage. The Minimum Requirements document provides extensive information about requirements for cleaning, sanitizing, and disinfecting. This includes information about approved products and supplies – and how to use and store them.
• General Guidelines for Cleaning, Sanitizing, and Disinfecting. Programs must identify and clean high-touch objects and surfaces with greater frequency. (Objects that children put in their mouths must be removed from circulation, cleaned, and sanitized before use by another child.)
• Indoor Play Areas. Programs do not need to use additional cleaning or disinfection procedures for books and other paper-based materials. Programs must discontinue use of any machine washable cloth toys. Programs are instructed to follow manufacturer’s instructions for cleaning and disinfecting electronics or alternatively, to use alcohol-based wipes or sprays.
• Outdoor Play Areas. Programs cannot use communal parks, playgrounds, or pools. (May use their own indoor and outdoor pools provided that they meet specific regulatory requirements.) High-touch plastic and metal surfaces should be frequently cleaned and disinfected.
• Cleaning, Sanitizing, and Disinfecting After a Potential Exposure in a Day Program. In such circumstances, programs must close off spaces the ill person visited, increase air circulation to those areas, and wait 24 hours to begin cleaning and disinfection. Must further disinfect all areas and equipment used by the ill person.
• Additional Considerations. Programs are further required to follow OSHA’s standards on Bloodborne Pathogens and CDC infection control guidelines.

Strategies to Reduce the Risk of Transmission:

• Programs must ensure six feet of distance between individuals and groups at all times, and when not possible, individuals must wear face coverings. Programs must have a minimum of 42 square feet per child – with a recommended 144 square feet per child. Programs should stagger drop-off and pick-up times, as well as recess times. Programs should close communal spaces, like game rooms and dining halls, if possible, and where not possible, stagger use and disinfect between uses. Programs must limit travel off the premises – though hiking and swimming on program grounds is permitted provided that 6 feet of distancing can be maintained. Programs may need to reorganize physical spaces to promote individual play and should ensure adequate supplies to minimize sharing of high touch materials.

Transportation:

• Transportation Usage and Plan. Group transportation should only be used when there are no other options to get children to and from the program. When group transportation is used, parents must take their child’s temperature and screen for other symptoms before the child boards the vehicle. Social distancing and group size requirements must be maintained in transit – as must requirements for use of face coverings. Programs must develop a transportation plan that includes screening requirements for drivers, monitors, and children, among other requirements.

Food Safety:

• When possible, minimize on-site food handling and preparation and serve pre-packaged snacks. Staff member must make sure children wash hands before and after eating, and they must wash their hands before preparing food and after helping children eat. High-touch surfaces in eating spaces must be cleaned and sanitized before and after each use. Food contact surfaces, equipment, and utensils used to prepare, package, or handle food must be washed, rinsed, and sanitized before each use.

Children with Special Needs, Vulnerable Children, and Infants and Toddlers:

• The Minimum Requirements document outlines specific requirements and protocols that programs must follow when their programs provides services to children with special needs, vulnerable children, and infants and toddlers. Programs that provide such services should consult the document for a full description of those requirements.

Recreational Camps and Programs:

• These camps and programs must follow many of the same protocols outlined for other programs – but have modified requirements for preparedness and planning, staffing and operations, and group sizes and ratios. See page 25 of this document for specific requirements relating to recreational camps and similar programs. Residential Camps and other overnight stays are not permitted until further notice.

Please register to attend our Webinar: Return to Business: Phase 2 of Massachusetts Reopening—An Overview for Restaurants, Hotels, Retail and Other Businesses scheduled for June 4, 2020.

We will continue to keep you apprised of any significant developments with respect to the Commonwealth’s reopening process.