Trump Administration Issues Guidelines on “Opening up America Again"

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On April 16, 2020, the Trump Administration issued Guidelines entitled “Opening Up America Again” to help ease the Nation’s economy into reactivity and recovery from the COVID-19 crisis. As widely reported in the press, the guidelines are premised on the logical conclusion that as cases and symptoms decline, and medical resources to address those situations expand, protective measures, whether societal or employer-based, can be modified and become less restrictive. Laid out over an eighteen page PowerPoint presented at a 6:00 pm White House press conference, the guidelines create three phases which, in order, provide examples of less rigorous recommendations which can be followed through each phase, as evidence shows there is declining number of cases and symptoms and medical resources increase to address those that still exist. For example, bars should remain closed during phase one, but can operate with diminished standing room capacity in phase two, and gyms can operate in phase two if they adhere to strict physical distancing and sanitation protocols but in phase three it is enough if they adhere to standard sanitation protocols. These phased guidelines are discussed in detail below.

While much of the press has focused on these three phases, the guts of the order, in fact, lie on pages one and two of the guidelines, specifying thresholds the proposals refers to as “Regional Gating Criteria,” which must be met before entering the phased-in schematic. These threshold criteria are both simultaneously major hurdles and difficult to measure in terms of success. At this stage it appears that it will be left up to the governors to determine whether or not these “gating” criteria have been met and, indeed, even whether or not the criteria allowing for movement through phases one, two or three have been met.

For example, on page one, a threshold test is whether there has been a
“[d]ownward trajectory of influenza like illnesses (ILI) reported within a 14 day period, and a “[d]ownward trajectory of COVID-like syndromic cases reported within a 14 day period.” There must also be a “[d]ownward trajectory of documented cases within a 14 day period; or a “[d]ownward trajectory of positive tests as a percent of total tests within a 14 day period…..”; and hospitals must be able to “[t]reat all patients without crisis care" and have a “[r]obust testing program in place for at-risk health care workers, including emerging antibody testing.”

Page two of the guidelines specify several “Preparedness Responsibilities,” such as the ability to quickly set up safe and efficient screening and testing sites for symptomatic individuals and trace contacts of COVID-19 results. The health care system must show “[a]bility to quickly and independently supply sufficient Personal Protective Equipment and critical medical equipment to handle dramatic surge in need.” There must be plans to protect the health and safety of workers in critical industries, protect the health and safety of those living and working in high-risk facilities (e.g. senior health care facilities), and protect employees and users of mass transit, and so on.

Of course, it is the very absence of widely available diagnostic tests and relatively limited health sector resources in the face of the upsurge of COVID-19 symptoms and cases that has vexed the governors in many states, and the Administration’s proposal does not dwell on how these challenges will be met, except to leave it to the governors. In sum, the guidelines chart a broad path moving forward upon measurable marked improvement in terms of downward trajectory of cases and symptoms and an upward trajectory in terms of health care system preparations, but certainly do not constitute a “Marshall Plan” to meet these threshold goals.

That being said, the guidelines do provide an insight as to the Administration’s thinking on various steps which should be followed by individuals, employers, and by society at large as the situation does improve. As such, they also help send a hopeful message that there is indeed light at the end of the tunnel. The guidelines for each phase are summarized below.

Under What Circumstances The Guidelines Suggest Reopening Regional Economies

As noted, the Guidance suggests ensuring adherence to the various threshold “gating” criteria prior to moving into each phase of reopening. Despite some inconsistent messaging from the Administration, the guidance document delegates the responsibility of making the critical decision to reopen the economy to the governors' discretion, but also encourages governors to work in tandem with local officials to satisfy the criteria. The guidance notes that the phased approach should be guided by the most recent data and protect the most vulnerable, while re-iterating reopening will occur on a statewide or county basis at the Governor’s discretion.

1. Phase One: The Door to Reopening is Ajar

The Guidance provides that, once the initial gating criteria is met, employers may begin returning to work, as long as safety guidelines are strictly adhered to and employers continue to encourage teleworking. Employers are advised to ensure common areas are closed and continue to restrict non-essential travel and adhere to CDC guidelines regarding isolation after travel. The guidance recommends that while childcare facilities and bars remain closed, and prohibits visits to senior centers, large venues, such as places of worship, can host events but only where the physical space permits adherence to social distancing. Elective surgeries may resume, but only on an outpatient basis.

2. Phase Two: The Door Creaks Open Only a Little More

States and regions with no evidence of a rebound and that satisfy the gating criteria a second time may move into the second phase of reopening. The only relevant substantive difference as the country moves into the second phase is that youth activities, including child-care facilities, and bars can reopen, the latter with diminished standing-room occupancy only.

3. Phase Three: The Door Swings Open

The phase three recommendations apply to states and regions with no evidence of a rebound and that satisfy the gating criteria a third time. In the final phase, employers may resume unrestricted staffing of workplaces, large venues may resume full activity in adherence with limited physical distancing protocols, bars may increase standing room occupancy, and visits to senior-care facilities and hospitals may resume. While the third phase suggests a return to a slightly different kind of economic normalcy, it is also a reflection of the long-lasting effects this pandemic will have on employer protocols moving forward. Specifically, while the guidance provides for a broad reopening of the American economy, it still suggests adherence to strict sanitation and social distancing measures to prevent a resurgence of COVID-19, particularly in vulnerable locations, like bars and senior living facilities.

In summary, much has been still left to the governors to work out individually or in regional pacts with other governors as to how to proceed forward on marshaling the health care resources necessary to address the crisis while devising a plan to reopen their local or regional economies. The Administration’s plan provides some overall guidance to encourage and help governors chart this course forward.

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For general information relating to employer return to work issues surrounding the COVID-19 crisis, see here for Seyfarth's recent Legal Update, Strategies for Developing A Return to Work Action Plan.