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Archive for the ‘Coronavirus – Employment Law Blog’ Category

Can I Take Your Order Please? OSHA Releases COVID-19 Guidance for Restaurants Offering Takeout or Curbside Pickup

Posted on: May 8th, 2020

By: Travis Cashbaugh

The COVID-19 pandemic has impacted all industries across the country, perhaps none greater than the restaurant, food and beverage industry. Faced with widespread closures, many retailers in the food and beverage industry modified their business models for the new post-crisis world to include in-store takeout and curbside pickup. Each method of delivery offers convenient, quality, fresh products for the consumer. More importantly, both offer minimal-touch pick-up options consistent with the “socially-distanced” goals of COVID-19 prevention for all involved—customers and employees.

To maintain the safety of such services on both customers and employees in the restaurant, food and beverage industries, the Occupational Safety and Health Administration (OSHA) has issued guidance for restaurants and beverage vendors offering takeout or curbside pickup. Through its May 1, 2020 safety alert publication, OSHA identified the following tips to help reduce the risk of exposure to the coronavirus:

  • Encourage workers to stay home if they are sick.
  • Avoid direct hand-off, when possible.
  • Display a door or sidewalk sign with the services available (e.g., take-out, curbside), instructions for pickup, and hours of operation.
  • Reserve parking spaces near the front door for curbside pickup only.
  • Train workers in proper hygiene practices and the use of workplace controls.
  • Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
  • Provide a place to wash hands and alcohol-based hand rubs containing at least 60% alcohol.
  • Routinely clean and disinfect surfaces and equipment with Environmental Protection Agency approved cleaning chemicals or that have label claims against the coronavirus.
  • Practice sensible social distancing by maintaining six feet between co-workers and customers. Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible.
  • Encourage workers to report any safety and health concerns.

In addition to remaining alert for further guidance from OSHA, employers in the restaurant, food, and beverage industries should be aware of specific guidance from state and local governments, as states across the county begin preparations to reopen. In Georgia for example, Governor Brian Kemp recently issued an Executive Order that provides new and extensive guidance for businesses across Georgia, including restaurants. FMG provided a detailed overview of that Executive Order and its impact on businesses, here.

With new habits and behaviors forming, those in the food and beverage industry that fail to pivot will likely find themselves struggling to compete. Employers that are planning on reopening—or continuing to operate, perhaps modifying their business model to include takeout or curbside pickup—should immediately begin assessing the health and safety protocols they have in place now and what additional steps they need to take consistent with OSHA’s guidance and state and local requirements.  Further, we recommend that employers consult with their counsel to evaluate any industry or location-specific measures that should be taken to reduce any concerns by customers or employees of contracting COVID-19 when on the employer’s establishment. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

CARES in California: New Unemployment Benefits Available Under Federal Law

Posted on: May 8th, 2020

By: Anastasia Osbrink

With over 3.5 million unemployment claims in California since mid-March, the state is facing an historic level of payments that need to be made. In fact, the state has paid out approximately $4.5 billion, which is entirely unprecedented. Every state will be stretched thin, but at least for four months, unemployed Californians will see a significant increase in their unemployment payments thanks to the new federal Coronavirus Aid, Relief, and Economic Security Act, or the “CARES” Act. Section 2104 of the CARES Act provides that those who qualify for unemployment benefits in participating states, which now includes California, will receive their normal weekly benefit amount, plus an additional $600 per week. This additional $600 is a federal supplement, known as Pandemic Emergency Unemployment Compensation (“PEUC”). In California, the average weekly unemployment benefit is $340. As a result of the PEUC, the average unemployment benefit check in California will increase to $940. The maximum benefit in California of $450 per week will also increase to $1050. These payments will be made through the Employment Development Department’s (“EDD”) debit cards as usual.

These benefits are not retroactive, and in California, they began on Sunday, April 12, 2020. The usual one-week waiting period for benefits is eliminated under section 2105 of the CARES Act. The additional $600 is only available while the individual would normally be eligible for benefits in that state. In California, this means benefits are available for 26 weeks. However, the additional $600 will cease on July 31, 2020 pursuant to the CARES Act and after that, the employee will receive their normal unemployment payment for the remainder of the 26-week period. Once the 26-week period is over, individuals will receive their normal benefit amount (though not the additional $600 after July 31, 2020) for a 13-week period pursuant to section 2107 of the CARES Act. That benefit and the waiver of the one-week waiting period will expire on December 31, 2020.

These benefits are obviously welcome aid for unemployed Californians. However, there are many issues the State continues to face. First, the CARES Act provides benefits for the first time to contract and furloughed workers and those in the gig economy. This means a whole new category of claims to process. That, coupled with business closures and layoffs, has resulted in a huge increase in claims. The extent of delays for individuals seeking benefits remains to be seen. Many applicants are unable to reach the EDD by phone because the EDD’s phone lines are open just four hours per day. Now that millions are trying to access the EDD, many are calling on the State to expand those hours. However, those administrative costs are paid for by employers through a federal tax, and federal funding was significantly reduced over the past several years due to the boom economy. As a result, EDD staffing was cut in half in California. Thus, half the amount of EDD staff is now struggling to process millions of claims. Federal law requires 90% of claims to be processed within 21 days. California came close to that in February and has appeared to largely keep up with it in March and April thanks to a more streamlined temporary process that has been implemented. This includes waiving some verification requirements until after payments are issued, no longer requiring claimants to recertify their claims every two weeks, and processing more claims through an automated system. However, significant delays have been reported for employees who were misclassified as independent contractors by employers and did not have their wages reported to the EDD, which is doing a wage audit. Many of these claimants have reported waiting six weeks or more before receiving benefits.

Additionally, it appears likely that it will be a long time before life returns to normal (though it will certainly be a new “normal” and not the normal we used to know), and the economy will take even longer to recover. This means months, and likely years of high unemployment in the State. How that unemployment will be paid for in the long run will be a significant challenge. In an effort to address this challenge, California became the first state in the country to take out a federal loan. As of April 30th, California has borrowed $348 million from the federal government and has been approved to borrow up to $10 billion. This is not the first time the state has taken out such a loan. California borrowed $10.7 billion from the federal government during the Great Recession that it just finished paying back in 2018, including hundreds of millions of dollars in interest. As of now, this appears to be California’s best option to stay afloat during what has become the highest period of unemployment since the Great Depression. Regardless, we can appreciate the reprieve and aid offered by the CARES Act.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Insurers Brace For “Huge” Volume of Business Interruption Suits

Posted on: May 4th, 2020

By: Kevin Kenneally, Michael Giunta & Janet Barringer

“The amount of litigation that is going to be generated…is gonna be huge.”Warren Buffett

At the annual meeting of Berkshire Hathaway in Omaha, Nebraska this past weekend, company chairman Warren Buffett said the insurance industry is preparing for a large volume of costly Business Interruption and related suits by insureds, reported the Wall Street Journal on Monday, May 4, 2020.   Berkshire Hathaway has substantial holdings in insurance companies and is an industry leader.  Buffett discussed many corporate policies do not cover Business Interruption, but because of legislative efforts to expand coverage for claims related to COVID-19, Buffett predicted that “the amount of litigation is going to be generated…is gonna be huge”, according to the newspaper.

Officials in several states, including Massachusetts and New Jersey, have proposed legislation to cover losses arising from Business Interruption related to COVID-19.  In Massachusetts, the proposed legislation would also allow insurers to apply for reimbursement for the costs through the Division of Insurance and allow the Division of Insurance to reimburse licensed insurers selling Business Interruption coverage.  While many businesses already purchased Business Interruption insurance prior to the pandemic, such coverage does not cover communicable diseases such as COVID-19.  Prior to this current pandemic, to obtain coverage for Business Interruption losses, businesses must show direct physical loss to property to prevail on a Business Interruption claim.  The proposed legislation in Massachusetts would require insurance to pay the claims for business interruption directly or indirectly resulting from COVID-19, while creating a means for the state government to reimburse insurers and recover those state funds after the health pandemic ends.

Litigation already has been initiated in federal courts in California, among other states, seeking declaratory judgment that insurance coverage for Business Interruption losses applies in the current public health crisis and alleging bad faith against the insurance carriers for denial of the claims, despite the definitions in the form policies. 

If you have any questions or would like more information, please contact Kevin Kenneally [email protected], Michael Giunta [email protected] or Janet Barringer [email protected]

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Governor Kemp Issues Comprehensive Executive Order Reopening And Impacting Businesses in Georgia

Posted on: April 28th, 2020

By: Andrew Kim

On April 23, 2020, Governor Brian Kemp issued an Executive Order that provides new and extensive guidance for businesses across Georgia, including restaurants, bowling alleys, theaters, childcare facilities and private social clubs, that are currently operating or seeking to re-open to in-person services after being closed by a previous Order by the Governor.

The general effective date of the Order begins on May 1, 2020 at 12:00 a.m. and ends on May 13, 2020 at 11:59 p.m., unless otherwise provided in the Order.

The Order spans 26 pages so any business operating in Georgia should review the Governor’s executive action to ensure it knows how it applies to its business, but below are some highlights: 

A.        General Provisions of the Executive Order:

1.         Shelter-In-Place Still Is In Effect For Certain Residents

Initially, it is important to note that, while the Order primarily addresses what businesses must do if they want to remain open, it also makes clear that certain residents of the State of Georgia are required to shelter in place.  Those residents are the following:

  • 65 years old or older
  • Living in nursing home or long-term care facility
  • Chronic Lung Disease
  • Moderate to severe Asthma
  • Severe heart disease
  • Immunocompromised (e.g., cancer treatment, smoking, bone marrow or organ transplant, poorly controlled HIV/AIDS)
  • Severe obesity
  • Those with diabetes, liver disease, chronic kidney disease undergoing dialysis

Those subject to the shelter-in-place restrictions can, however, conduct or participate in “Essential Services,” perform “Necessary Travel,” perform “Minimum Necessary Activities to maintain the value of a business” and perform work for a “Critical Infrastructure” business.  All of the above-quoted terms are specifically defined in the Order. 

2.         Businesses Are Limited To The Number Of Persons Physically Present

Unless a business is considered to be “Critical Infrastructure,” no business (including non-profit organizations, county and municipal government) shall allow more than ten (10) persons physically present at a Single Location if, to be present, persons are required to stand or be seated within six (6) feet of any other persons.

However, “groups of more than ten (10) people are permitted if their grouping is transitory or incidental, or if their grouping is the result of being spread across more than one Single Location.”

The Executive Order defines Single Location as, “a space where all persons gathered cannot maintain at least six (6) feet of distance between themselves and any other person.”

B.        Mandates for Restaurants Effective April 27, 2020:

The Executive Order allows restaurants to again provide dine-in services effective Monday, April 27, 2020, but does not permit them to have more than ten (10) patrons in the restaurant per 500 square feet of public space. The spaces that must be considered when calculating square footage include waiting areas and bar areas, but do not include hallways, restrooms; and spaces closed to patrons.

Additionally, the Order imposes several mandates on restaurants if they want to provide dine-in-services, including the following (this is not the entire list, but a highlight of the major obligations):

  1. Screen and evaluate workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Require all employees to wear face coverings at all times. Such coverings shall be cleaned or replaced daily;
  3. Require workers who exhibit signs of illness to not report to work or to seek medical attention. Per existing U.S. Food and Drug Administration Food Code requirements, employees who are sick should remain home. If an employee becomes ill or presents signs of illness at work, the operator should identify the employee’s condition during a pre-work screening and send the employee home.
  4. Implement staggering shifts for all possible workers;
  5. Where possible, stagger workstations to avoid employees standing adjacent to one another or next to each other. Where six (6) feet of separation is not possible, consider spacing options that include other mitigation efforts with increased frequency of cleaning and sanitizing surfaces;
  6. Increase physical space between workers and patrons and limit contact between wait staff and patrons;
  7. Discontinue use of salad bars and buffets;
  8. If providing a “grab and go” service, stock coolers to no more than minimum levels;
  9. Remove items from self-service drink, condiment, utensil, and tableware stations and have workers provide such items to patrons directly wherever practicable;
  10. Between diners, clean and sanitize table condiments, digital ordering devices, check presenters, self-service areas, tabletops, and commonly touched areas, and discarding single-use items;
  11. The use of disposable paper menus is strongly encouraged, which should be discarded after each patron use. Otherwise, businesses subject to this Section shall clean and sanitize reusable menus between each use by a patron. Non-touch menus are also acceptable for use;
  12. Update floor plans for common dining areas, redesigning seating arrangements to ensure at least six (6) feet of separation from seating to seating. Utilize physical barriers on both seating when available;
  13. Limit party size at table to no more than six (6);
  14. Post signage on entrances that no one with a fever or symptoms of COVID-19 is permitted in the facility;
  15. Where practicable, physical barriers such as partitions or Plexiglas at registers should be used;
  16. Do not allow patrons to congregate in waiting areas or bar areas. Design a process to ensure patron separation while waiting to be seated that can include floor markings, outdoor distancing, or waiting in cars;
  17. Mark ingress/egress to and from restrooms to establish paths that mitigate proximity for patrons and staff;
  18. Where practicable, take-out and curbside pick-up services should be prioritized over dine-in services; and
  19. All restaurant or dining room playgrounds shall be closed.

It is important to note that none of these mandates apply to the operation of dining services in:

  • Hospitals
  • Healthcare facilities
  • Nursing Homes
  • Or other long-term care facilities.

C.        Guidance for Businesses Defined as Critical Infrastructures Effective May 1, 2020:

The Executive Order also requires that, effective May 1, 2020 (and through May 13, 2020), Critical Infrastructure businesses that continue in-person operations implement measures which mitigate the exposure and spread of COVID-19.  The Order does not mandate any specific measures, but instead identifies various actions that such a business can (and should) take to the maximum extent possible.

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Disinfecting common surfaces regularly;
  3. Practice social distancing;
  4. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  5. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper Social Distancing is attainable;
  6. Implementing teleworking for all possible workers;
  7. Implementing staggered shifts for all possible workers;
  8. Holding all meetings and conferences virtually, wherever possible;
  9. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  10. If in use, open sales registers must be at least six (6) feet apart;
  11. Point of sale equipment should be frequently cleaned and sanitized;
  12. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
  13. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;

D.        Measures for Non-Critical Infrastructure Businesses Effective May 1, 2020:

Effective, May 1, 2020, Non-Critical Infrastructures continuing their in-person operations must adhere to various measures, including the following:

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. If a retail business, posting a sign on the storefront stating that individuals who have a fever or other symptoms of COVID-19 shall not enter the store;
  3. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
  4. Disinfecting common surfaces regularly;
  5. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  6. Practice social distancing at work
  7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
  8. Implementing teleworking for all possible workers;
  9. Implementing staggered shifts for all possible workers;
  10. Holding all meetings and conferences virtually, wherever possible;
  11. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  12. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
  13. For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia Law;
  14. Open sales registers must be at least six (6) feet apart;
  15. Increasing physical space between workers and patrons; and
  16. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.

The Executive Order also recommends all Critical and Non-Critical Infrastructures that continue their in-person operations adhere to the following measures when practicable:

  1. Providing Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  2. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and
  3. Increasing physical space between workers’ worksites to at least six (6) feet.

The April 23, 2020, Executive Order defines Personal Protective Equipment as: “surgical masks, N95 masks, respirators, other facemasks, protective gloves, protective clothing, protective garments, and shoe coverings.”

E.        Measures for Retail Businesses and Food Establishments Effective May 1, 2020:

Effective May 1 and running through May 13, 2020, all retail businesses, which includes Food Establishments like Retail and Wholesale Grocery Stores, must implement the following additional measures:

  1. Limiting the number of patrons inside the store to 50% of fire capacity occupancy or eight (8) patrons per 1,000 square feet;
  2. Encouraging patrons to use hand sanitizer upon entering;
  3. Encouraging non-cash payments when possible;
  4. Sanitizing entrance and exit doors at least three (3) times per day;
  5. Encouraging workers to report any safety and health concerns to the employer;
  6. Installing protective screens or other mitigation measures where worker-patron interactions are likely; and
  7. Providing additional hand sanitizer within the business.

The Executive Order also requires that these retail businesses implement additional measures where practicable. The measures that the Executive Order recommends, to the maximum extent practicable, include:

  1. Schedule specific hours of operation for vulnerable populations to shop without other patrons;
  2. Reducing store hours to allow for increased cleaning and sanitation while the store is closed;
  3. Enacting policies and procedures to encourage social distancing for patrons and employees. Such measure may include:
    1. Protective Plexiglass screens at service counters and at cash registers;
    2. Decals on the floor or aisles with messaging on social distancing;
    3. Signs throughout the store giving visuals on social distancing;
    4. Limited occupancy if store becomes too crowded; and
    5. Use of one-way aisles.
  4. Providing Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  5. Encouraging patrons to wear face coverings;
  6. Utilizing in-store messaging to educate and remind patrons and employees on recommended hygiene and social distancing;
  7. Discontinuing sampling or cooking stations;
  8. Closing self-service salad bars and buffets;
  9. Adding additional staff to specifically oversee increased sanitation of grocery carts, and other high-touch areas such as door handles, point of sales equipment, conveyor belts, and other surfaces;
  10. Checking restrooms regularly, cleaning and sanitizing based on frequency of use, and ensuring adequate supply of soap and paper towels at all times;
  11. Allowing time for frequent hand washing for employees, including cashiers, that interact directly with patrons;
  12. Increasing or add hand sanitizing stations around stores for patrons and employees; and
  13. Procuring options with third-party cleaning companies to assist with the increased cleaning demands as needed.

The April 23, 2020, Executive Order specifically excludes the above measures for the following retail businesses:

  • Food Processing Plants;
  • Wholesale Sandwich manufacturers; and
  • Wholesale Salad manufacturers.

F.         Additional Measures for Gyms and Fitness Centers Effective Immediately:

In addition to the measures imposed on the other businesses, Gyms and Fitness Centers are required to implement the following measures immediately (through May 13, 2020):

  1. Placing signage at any entrance to instruct patrons that they cannot enter if they have been diagnosed with COVID-19, had symptoms of COVID-19, or had contact with a person that has or is suspected to have COVID-19;
  2. Placing signage at any entrance and throughout the facility to instruct patrons of the enhanced sanitation procedures, Social Distancing requirements, and other instructions and limitations, as applicable, set forth below;
  3. Screening patrons at entrance. Patrons exhibiting a temperature greater than 100.4 degrees Fahrenheit, cough, shortness of breath, or other respiratory symptoms shall not be permitted to enter;
  4. Limiting occupancy to enforce Social Distancing requirements and to prohibit Gatherings;
  5. Utilizing contactless forms of patron check-in;
  6. Providing hand sanitizer stations for patrons and encouraging use;
  7. Providing sanitation wipes at or near each piece of equipment and requiring users to wipe down the equipment before and after use;
  8. Requiring workers to patrol patron areas to enforce the equipment wipe-down policy and conduct additional cleanings during times when equipment is not being used;
  9. Limiting use of cardio machines to every other machine to maintain acceptable Social Distancing between users;
  10. Enforcing Social Distancing and prohibiting congregating between non-cohabitating patrons. Patrons should be encouraged to conduct their workout and exit the facility without unnecessary delay;
  11. Halting the provision of group classes;
  12. Halting the provision of in-facility child care services;
  13. Closing the following facilities and equipment within a gym or fitness center:
    1. Pools
    2. Basketball courts
    3. Group sport areas
    4. Hot-tubs
    5. Saunas
    6. Steam rooms
    7. Tanning beds
  14. Limit locker room use and avoid use if possible;
  15. Requiring patrons to spray showers with a provided cleaning spray after use; and
  16. Requiring workers to clean and sanitize bathrooms and locker rooms regularly throughout the opening hours in addition to the regular cleaning schedule.

G.        Additional Measures for Body Art Studios, Hair Salons, Estheticians, and Other Businesses Effective Immediately:

The April 23, 2020, Executive Order also issues additional measures for the following businesses, effective immediately (through May 13, 2020):

  • Body Art Studios, pursuant to Code Section 31-40-2
  • Businesses registered pursuant to Code Sections 43-10-11 and 43-10-18
    • Beauty Shops
    • Beauty Salons
    • Barber Shops
    • Schools of Cosmetology
    • Schools of Hair Design
    • Schools of Esthetics
    • Schools of Nail Care
    • Schools of Barbering
  • Individuals who, for compensation, engage in the practice of esthetics (massages, trims, dyeing, etc.), or cosmetic skincare, pursuant to Code Section 43-10-1(8)
  • Hair Designers, pursuant to Code Section 43-10-1(9)
  • Persons who practice Massage Therapy, pursuant to Code  43-24A-8; and
  • Tanning Facilities, as defined by Code Section 31-38-1(6)

The below measures are mandatory for the businesses listed above:

  1. Providing services by appointment only. Walk-in patrons should not be allowed;
  2. Patrons should be required to sanitize their hands upon entering the facility and before any treatment;
  3. Providing hand sanitizer or sanitization wipes to patrons upon arrival;
  4. Posting signs at the entrance and at eye-level at each workstation stating that any patron who has symptoms of COVID-19 must reschedule their appointment;
  5. Allowing only one (1) patron per service provider in the business at any one time,
  6. Allowing one (1) parent to be within a facility if a minor child is receiving a haircut;
  7. Requiring patrons to wait in car in his or her car until service provider is ready;
  8. Staggering use of every-other workstation or spacing workstations more than ten (10) feet apart, whichever option is practicable given the facility’s configuration;
  9. Staggering work schedules so that no more than 50% of the normal number of employees providing services will be in the business at a time;
  10. Requiring all employees to wear Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  11. Sanitizing all equipment, chairs, and tables used by employees and patrons between each client visit;
  12. Utilizing disposable materials and supplies as much as practicable according to state rules and regulations; and
  13. Training all employees on additional measures both verbally and in writing.

H.        Additional Measures for Theaters Effective May 1, 2020:

In addition to the above applicable requirements, indoor movie theaters and cinemas that choose to operate from May 1, 2020 to May 13, 2020 must implement the following additional measures:

  1. Each party of patrons must be seated at least six (6) feet apart. No party seated together may number more than six (6) individuals;
  2. At least one usher must be used in each theater room before and at some point, during each showing to ensure that proper Social Distancing protocol is enforced;
  3. Seats, armrests, handrails, doors, doorknobs, and door handles in each theater must be thoroughly sanitized before and after each showing;
  4. Tape must be applied to floors at ticket counters and concession stands to enforce proper Social Distancing protocol for patrons who are waiting in line;
  5. Restrooms must be cleaned and disinfected regularly, and touchpoints must be cleaned no less than once per hour;
  6. Foodservice areas must adhere to the same guidelines set for Restaurants and Dining Services;
  7. Party rooms located at theaters may not host parties or Gatherings; and
  8. Closing playgrounds and arcade rooms, if any.

I.          Additional Measures for Bowling Alleys Effective May 1, 2020

In addition to the above applicable requirements, bowling alleys that choose to operate from 12:00 a.m. May 1, 2020 to May 13, 2020, must implement the following additional measures:

  1. Placing signage at entrance and throughout the facility to instruct patrons of social distancing requirements and other instructions and limitations, as applicable;
  2. Providing hand sanitizer stations for patrons throughout the facility;
  3. Foodservice areas must adhere to the same guidelines set for Restaurants and Dining Services;
  4. Tape must be applied to floors at ticket counters and concession stands to enforce proper social distancing protocol for patrons who are waiting in line;
  5. Removing items from all self-service bowling ball, bowling shoe, and other bowling accessory stations and have workers provide such items to patrons directly;
  6. Allowing groups of six (6) patrons or less per lane;
  7. Staggering use of lanes so that only every other lane or every third land is in use to maintain Social Distancing between groups of patrons. Each party of patrons must be seated at least six (6) feet apart;
  8. Scorekeeping machines, ball returns, tables, seats, and other fixtures at each bowling lane must be thoroughly sanitized before and after each use;
  9. Bowling balls and bowling shoes must be thoroughly sanitized before and after each use;
  10. Party rooms located at bowling alleys may not host parties or groups of more than 10 people if they are not at least six feet apart; and
  11. Closing playgrounds and arcade rooms, if any.

J.         Measures for Businesses Performing Outdoor Work

People who perform work outdoors where regular contact with another person does not occur only need to practice social distancing and implement a sanitation process in accordance with the guidelines published by the Centers for Disease Control and Prevention.

The April 23, 2020, Executive Order lists the following businesses as examples of outdoor work:

  • Delivery Services
  • Contractors
  • Landscape Businesses
  • Agricultural Industry Services

K.        Measures Impacting Healthcare Businesses Effective Immediately

The Executive Order also includes provisions that apply to various healthcare businesses. The following provisions are effective immediately:

  • All persons, services, or entities delivering healthcare during the effective dates of the Order must follow the guidelines listed for Critical Infrastructure along with the additional Healthcare guidelines listed in the Order.
  • Dental practices and clinics continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the American Dental Association’s Interim Guidance for Minimizing Risk for COVID-19 Transmission and Interim Mask and Face Shield Guidelines.
  • Any previous previously issued Executive Order or rule that would prevent dental practices and clinics from providing the full scope of their services subject to the above requirements are suspended.
  • Licensed Optometrists and their staff continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the American Optometric Association’s Practice Reactivation Preparedness Guide and the Georgia Optometric Association’s COVID-19 guidelines for practices issued on March 17th and April 20th of 2020.
  • Any previous previously issued Executive Order or departmental rule that would prevent optometrists from providing the full scope of their services subject to the above requirements are suspended.
  • Licensed Opticians and their staff continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the Centers for Disease Control and Prevention’s Recommendations for Office Disinfection and Recommendations for Employers.
  • Any previous previously issued Executive Order or departmental rule that would prevent opticians from providing the full scope of their services subject to the above requirements are suspended.
  • Ambulatory Surgical Centers continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also implement additional measures to prevent the spread of COVID-19. To the maximum extent practicable, these measures may include:
  1. Screening patients before visits and monitoring their health prior to starting surgery as party of the pre-operative procedure;
  2. Requiring staff to self-monitor and screen for viral symptoms daily;
  3. Continuing to use Personal Protective Equipment per the latest Centers for Disease Control and Prevention recommendations for all procedures;
  4. Following waiting room spacing guidelines, social distancing, face masking, and other recommended procedures for patients and visitors prior to entering the facility;
  5. Ensuring heightened disinfection to prevent and mitigate risk of spread;
  6. Ensuring patients have been medically cleared by their primary care physician where applicable;
  7. Balancing the needs of patient care with the risk of providing that care by prioritizing procedures for patients who have lower co-morbidities and surgical risks and procedures accompanied by lower risk with regard to airborne transmission and those with minimal risk of unintended hospital admissions;
  8. Performing regular rapid COVID-19 testing on providers and employees where feasible; and
  9. Performing COVID-19 testing on patients suspected to be experiencing COVID-19 and factoring the results of such testing into clinical decisions as to whether or not to proceed with procedures.
  10. As with the above sections, any previously issued Executive Order or departmental rule that would prevent ambulatory surgical services from providing the full scope of their services subject to the above requirements are suspended.

L.        Enforcement of Executive Order

The Executive Order allows “any law enforcement officer, after providing reasonable notice and issuing at least two (2) citations for violations of Code Section 38-3-7, is authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance with this Order for a period not to extend beyond the term of this order.”

M.       So What Next?

Employers that are planning on reopening (or continuing to operate) their business based on Governor Kemp’s April 23, 2020 Order should immediately begin assessing the health and safety protocols they have in place now for employees and what additional steps they need to take to comply with the April 23 Order.  Further, we recommend that employers consult with their counsel to evaluate any industry or location-specific measures that should be taken to reduce any concerns by customers of contracting COVID-19 when visiting the employer’s establishment. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include re-opening the workplace, protecting business interests, shelter in place orders and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Massachusetts: Relief Funds For Nursing Home & Other Long-term Care Facilities Fighting COVID-19

Posted on: April 27th, 2020

By: Janet Barringer and William Gildea

Massachusetts Governor Charlie Baker announced on April 27, 2020 the Commonwealth will allocate $130 Million to nursing homes and other long-term care facilities in Massachusetts to assist in the ongoing battle against COVID-19. The COVID-19 Nursing Facility and Accountability Support document states “[n]ursing facilities account for more than half of COVID-19 related deaths in the state.” The rapid rate of infection and mortality is driven by the “health status of residents, lack of infection control sophistication and for crisis management, substantial staffing issues (up to 20-40% of call out rates), and difficulty cohorting residents to decrease transmission.”

Nursing homes and other long-term care facilities should take note of this new assistance offered by the Commonwealth to help the battle against COVID-19. The Press Release provides the following:

  • Funding will support staffing costs, infection control and personal protective equipment (PPE);
  • Funding is dependent on required COVID-19 testing of all staff and residents, regular infection control audits, appropriate allocation of funding and the public release of facility performance and funding use;
    • Facilities must test all staff and residents, and report results to the Commonwealth. Facilities are also encouraged to identify and pursue testing avenues with area hospitals, EMS or other providers. The state’s mobile testing program is available for those facilities unable to set up testing.
    • All nursing facilities will be regularly audited in-person for infection control and accountability, and each will receive a baseline audit during the first two weeks of May. These clinical audits will be conducted using a 28-point Infection Control Checklist, based on DPH, CDC and industry guidance. This checklist includes infection control, PPE supply and usage, staffing, clinical care, and communication requirements.
    • Frequency of audits is dependent upon a variety of factors including: Audit Rating, historically documented infection control issues, staffing levels based on industry standard hours per patient day of care and call-out rates, level of COVID-19 infection, and quality rating by the Nursing Facility Taskforce.
  • Facilities will be scored into three ratings: in adherence (green), in adherence but warrants inspection (yellow) and not in adherence (red).
  • The Commonwealth will offer support for temporary staffing assistance for all nursing homes in need, including clinical response teams of 120 nurses and Certified Nursing Assistants deployed in teams of 10 during emergency situations, crisis management support and deployment of the Massachusetts National Guard;
  • All performance measures and funding use will be publicly reported using a mandatory reporting template, and the Commonwealth will provide consolidated information in the testing completion status by facility, COVID-19 case counts and mortality of staff and residents, and audit results. These reports will be due shortly after June 30th, and the Commonwealth will then compile and deliver a public report.
  • Funding is directly linked to an audit rating over time and, if qualified, will be dispersed biweekly over four “pay periods.”

Governor Baker promised to be “aggressive” in assisting long term care facilities impacted by COVID 19. The $130 Million in relief funds and associated steps for protection are examples of the care extended by Massachusetts to those who live and work in nursing homes and other long-term care facilities.

If you have any questions or would like more information, please contact Janet Barringer at [email protected] and William Gildea at [email protected].