Massachusetts’ Re-Opening Phase Two and OSHA COVID-19 Recording Requirements: What Employers Need to Know

June 11, 2020

On June 6, 2020, Governor Baker issued COVID-19 Order No. 37, clarifying which businesses and organizations may reopen during Phase Two, and allowing most Phase Two enterprises to reopen on June 8. Prior to reopening their brick-and-mortar premises, Phase Two enterprises must adopt mandatory safety standards, adhere to sector-specific rules, and complete a self-certification process. Relevant information for businesses and organizations impacted by Phase Two of Massachusetts’ reopening is summarized below.

Which workplaces may reopen?

Phase Two has been bifurcated into two stages, allowing restaurants and other industries to gradually expand their operations as Phase Two progresses. 

The following types of workplaces may reopen during Phase Two, often in a limited capacity and subject to their compliance with mandatory safety standards as described below:

Phase Two, Step One (June 8)

  • Retail stores (including stores in enclosed shopping malls);

  • Restaurants providing seated food service prepared on-site and under retail food permits issued by municipal authorities pursuant to 105 CMR 590.000 including beer gardens, wineries, and distilleries meeting these criteria (for outdoor table service);

  • Hotels, motels, inns, and other short-term lodgings (no events, functions, or meetings);

  • Limited organized youth and adult amateur sports activities and programs (no contact, games, or scrimmages, and indoor facilities are limited to youth programs);

  • Professional sports practice and training programs (no inter-team games or admission for the public);

  • Personal services provided at a fixed place of business or at a client location involving no close personal contact (i.e., photography, window washers, individual tutoring, home cleaning, etc.);

  • Non-athletic instructional classes in art/education/life skills for youths under 18 years of age in groups of less than 10;

  • Driving and flight schools;

  • Outdoor historical spaces (no functions, gatherings, or guided tours);

  • Funeral homes (increased capacity to permit 40% occupancy for one service at a time within the facility);

  • Warehouses and distribution centers;

  • Golf facilities (including outdoor driving ranges);

  • Other outdoor recreational facilities (pools, playgrounds, spray decks, mini golf, go karts, batting cages, climbing walls, and ropes courses);

  • Day camps (including sports and arts camps);

  • Public libraries; and

  • Post-secondary/ higher education/ vocational technical/ trade/ occupational schools for the limited purposes of permitting students to complete a degree, program, or prerequisite for employment, or other similar requirement for completion, for summer youth programming including athletic facilities, and any necessary supporting services. 

Phase Two, Step Two (Date TBD)

  • Restaurants providing seated food service prepared on-site and under retail food permits issued by municipal authorities pursuant to 105 CMR 590.000 including beer gardens, wineries, and distilleries meeting these criteria (for indoor table service); and

  • Personal services provided at a fixed place of business or at a client location involving close personal contact (i.e., massage, nail salons, personal training for individuals or two people from the same household, etc.).

Even if not specifically listed above, a business or organization may qualify for reopening during Phase Two if it: 1) was not previously permitted to open as an essential service or Phase One enterprise; 2) was not closed by any COVID-19 Order aside from COVID-19 Order No. 13; 3) is not one of the enterprises explicitly excluded from Phase Two by the Governor’s June 6 Executive Order; and 4) is not currently designated as a Phase Three or Phase Four enterprise.

What safety precautions are required for reopening workplaces?

Before reopening, workplaces must meet the following safety requirements:

1)    Implement Mandatory Safety Standards for Workplaces

  • Establish protocols to ensure that employees can practice adequate social distancing. All persons, including employees, customers, and vendors should remain at least six feet apart to the greatest extent possible.

  • Provide signage for safe social distancing.

  • Require face coverings or masks for all employees.

  • Provide hand washing capabilities throughout the workplace and ensure frequent hand washing by employees and adequate supplies to do so.

  • Provide training for employees regarding social distancing and hygiene protocols.

  • Forbid employees who are displaying COVID-19 symptoms from reporting to work.

  • Establish a plan for employees who become ill from COVID-19 at work, and a return-to-work plan.

  • Establish and maintain cleaning protocols specific to the workplace and disinfect all common surfaces at appropriate intervals. High touch areas, such as workstations, equipment, screens, doorknobs, and restrooms must be regularly sanitized, and cleaning and disinfecting must also be performed when an employee working onsite is diagnosed with COVID-19.

2)    Implement Sector-Specific Protocols

To supplement the general safety requirements described above, Gov. Baker’s administration has also released industry-specific safety requirements for: restaurants, retail businesses, golf facilities, operators of lodgings, driving and flight schools, outdoor recreational businesses and activities, occupational schools and testing centers, additional guidance for health and human services, and sectors not otherwise addressed.

These guidelines expand upon the mandatory safety standards and establish more specific restrictions appropriate to particular industries. For example, among other restrictions, restaurants must:

  • Comply with social distancing restrictions in all customer seating areas, including:

  • Positioning tables to maintain a six-foot distance from all other tables and any high foot traffic areas (tables may be positioned closer if separated by protective/non-porous barriers);

  • Seating no more than six people at a table;

  • Closing all other amenities and areas not employed for food and beverage service (e.g., dance floors, pool tables, playgrounds, etc.);

  • Closing or reconfiguring worker common spaces and high-density areas to allow six feet of physical distancing;

  • Staggering work schedules, meal, and break times; and

  • Requiring face coverings for all customers and workers at all times (except where an individual in unable to wear one due to a medical condition or disability).

  • Adhere to specific hygiene protocols such as ensuring alcohol-based hand sanitizers with at least 60% alcohol are available at entrances, exits, and in the dining area, closing communal serving areas, and using disposable, display, or electronic menus.

  • Provide training to workers on up-to-date safety information and precautions.

  • Encourage reservations or call ahead seating when possible, and prevent diners waiting for tables from congregating in one area or forming lines.

Additional industry guidance is forthcoming.

3)    Complete mandatory self-certification

  • Before reopening, workplaces must develop a written COVID-19 Control Plan outlining how it will prevent the spread of COVID-19. This requirement can be fulfilled using a template available here. This plan does not need to be submitted for approval, rather it must be retained at the workplace.

  • Workplaces must also sign and hang a poster attesting that they have completed a COVID-19 Control Plan in an area visible to employees and visitors on its premises. This poster is available here. 

  • Workplaces are also required to post signs and posters for both employers and workers describing the rules for maintaining social distancing, hygiene protocols, and cleaning and disinfecting procedures. 

My workplace is not included in Phase One or Two. When will I be able to reopen? 

Under the current plan, the following types of workplaces may reopen in the following Phases (subject to their compliance with mandatory safety standards and additional restrictions):

Phase 3

  • Post-secondary/ higher education/ vocational-technical/ trade/ occupational schools (general operations);

  • Casino gaming floors;

  • Horseracing tracks and simulcast facilities (no spectators);

  • Indoor recreational and athletic facilities for general use (not limited to youth programs);

  • Fitness centers and health clubs (excluding saunas, hot tubs, and steam rooms);

  • Museums;

  • Indoor historic spaces/sites;

  • Aquariums;

  • Outdoor theatres and performance venues of moderate capacity;

  • Indoor theatres, concert halls, and other performance venues of moderate capacity;

  • Sightseeing and other organized tours;

  • Motion picture, television, and video streaming production (except for activities specifically permitted in Phases One and Two);

  • Fishing and hunting tournaments and other amateur or professional derbies;

  • Weddings/events/gatherings in parks, reservations, and open spaces with allowance for moderate capacity;

  • Overnight camps;

  • Indoor non-athletic instructional classes in art/education/life skills for persons 18 years or older; and

  • Indoor recreational businesses (batting cages, driving ranges, go karts, bowling alleys, arcades, laser tag, roller skating rinks, trampolines, rock climbing).

Phase 4

  • Amusement parks, theme parks, and indoor or outdoor water parks;

  • Saunas, hot-tubs, and steam rooms at fitness centers, health clubs, and other facilities;

  • Bars, dance clubs, and nightclubs (venues offering entertainment, beverages, or dancing and not providing seated food service prepared on-site);

  • Beer gardens, breweries, wineries, and distilleries not providing food service prepared on site;

  • Large capacity venues used for group or spectator sports, entertainment, business, and cultural events (i.e., theatres, concert halls, ballrooms, stadiums, dance floors, and convention halls);

  • Private party rooms;

  • Street festivals, parades, and agricultural festivals; and

  • Road races and other large, outdoor organized amateur or professional group athletic events.

Additional information regarding the proposed reopening schedule for various workplaces and recreational activities is available here. 

Massachusetts has also released additional information regarding reopening requirements for childcare, youth programs, and educational institutions.

Childcare and summer camps

On June 1, 2020, the Massachusetts Department of Early Education and Care (“EEC”) issued the Massachusetts Child and Youth Serving Programs Reopen Approach: Minimum Requirements for Health and Safety for child-care programs, recreational camps, and municipal or recreational youth programs seeking to reopen, along with Frequently Asked Questions. This EEC document details extensive reopening requirements, including but not limited to, developing and maintaining plans regarding how the program will meet the new health and safety requirements, staffing and operational requirements, group size limitations, screening and monitoring procedures for children and staff, and hygiene and health practices. 

EEC anticipates releasing additional guidance and support materials in the coming weeks. 

Colleges and universities

During Phase One, higher education institutions were allowed to begin repopulating laboratory and clinical settings, and small numbers of students, staff, and faculty were allowed to return to campus as-needed to help prepare for repopulation during future phases subject to certain restrictions. During Phase Two, colleges and universities may begin allowing students, staff, and faculty to return to campus for the limited purposes of permitting students to complete a degree, program, or prerequisite for employment, or other similar requirement for completion, for summer youth programming including athletic facilities, and any necessary supporting services. Institutions must continue following Phase One guidance for all activities allowable in Phase One, complete the Higher Education COVID-19 Control Plan for allowable Phase Two activities, and should continue preparing plans for Phase Three. 

Additional guidance for colleges and universities is also available through the Centers for Disease Control and Prevention. 

I have an employee who tested positive for COVID-19. Do I need to determine whether they contracted COVID-19 at work?

Yes, if the Occupational Safety and Health Administration (“OSHA”) requires your enterprise to record occupational illnesses and injuries. In a recent memorandum, OSHA reversed previous guidance and clarified that effective May 26, 2020, employers must record instances of COVID-19 in the workplace if: 1) it is a confirmed case of COVID-19; 2) it is work-related, meaning the employee contracted the illness at work; and 3) the illness results in death, days away from work, restricted work or transfer to another job, medical aid beyond first aid, loss of consciousness, or involves a significant illness diagnosed by a physician or other healthcare professional. (Employers with 10 or fewer employees and certain employers in low hazard industries are not subject to the same recording requirements, and need only report work-related COVID-19 illnesses that result in a fatality, in-patient hospitalization, amputation, or loss of an eye.)

Because nearly all instances of COVID-19 will result in the employee taking time off from work, employers should conduct an investigation to determine whether the case of COVID-19 is work-related. Although this investigation does need to include extensive medical inquiries, employers should:

  • Ask the employee how they believe they contracted COVID-19;

  • While respecting the employee’s privacy, discuss the employee’s work and personal activities that may have led them to contract COVID-19; and 

  • Review the employee’s work environment for potential exposure, including whether any other workers in that area contracted COVID-19.

When determining whether a case of COVID-19 is work-related, the employer should consider all readily available information. If after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role in contraction of a case of COVID-19, the employer does not need to record that case of COVID-19. However, a case of COVID-19 is likely work-related if it was contracted shortly after close, prolonged exposure to a coworker or customer with COVID-19, the employee’s duties include frequent, close exposure to the general public in an area where COVID-19 continues to spread, and there is no alternative explanation.

Instances of COVID-19 that are work-related should be recorded on the OSHA Form 300.

Stay tuned for future alerts on these developing issues. For assistance preparing your workplace to resume operations, contact Margaret H. Paget or Allyson Kurker at Kurker Paget LLC.