On May 18, 2020, the Massachusetts Reopening Advisory Board published its Reopening Massachusetts Report (the "Report") setting out detailed requirements for businesses that are currently open and those that are permitted to reopen during Phase 1 of Governor Baker's Four-Phase Approach. Essential businesses that remain open will need to ensure that they have complied with specified safety requirements identified in the Report by May 25, while non-essential businesses will need to comply before they reopen their offices.

Businesses Eligible to Reopen During Phase 1

Beginning on May 18, certain limited businesses, such as those in the construction and manufacturing sectors, were permitted to reopen. Beginning on May 25, laboratories and life science facilities that were not previously deemed essential businesses, offices other than those in the City of Boston, and other types of businesses listed in the Report such as salons and retail businesses can reopen. Beginning on June 1, offices in the City of Boston can reopen. Many businesses will have to reopen in a limited capacity, in accordance with applicable guidance. For example, non-essential businesses with offices reopening on May 25 will have to limit office occupancy to no more than 25 percent of (a) the maximum occupancy level specified in any certificate of occupancy or similar permit or as provided for under the state building code, and (b) its typical occupancy as of March 1, 2020.

Reopening Requirements

Essential businesses that want to remain open and all businesses that want to reopen will have to comply with the following Mandatory Workplace Safety Standards.

• Social Distancing
  • All persons, including employees, customers, and vendors should remain at least six feet apart to the greatest extent possible, both inside and outside workplaces.
  • Establish protocols to ensure that employees can practice adequate social distancing.
  • Provide signage for safe social distancing.
  • Require face coverings or masks for all employees.
• Hygiene Protocols
  • Provide hand washing capabilities throughout the workplace.
  • Ensure frequent hand washing by employees and adequate supplies to do so.
  • Provide regular sanitization of high touch areas, such as workstations, equipment, screens, doorknobs, and restrooms throughout work site.
• Staffing and Operations
  • Provide training for employees regarding the social distancing and hygiene protocols.
  • Employees who are displaying COVID-19-like symptoms do not report to work.
  • Establish a plan for employees getting ill from COVID-19 at work, and a return-to-work plan.
• Cleaning and Disinfecting
  • Establish and maintain cleaning protocols specific to the business.
  • When an active employee is diagnosed with COVID-19, cleaning and disinfecting must be performed.
  • Disinfection of all common surfaces must take place at intervals appropriate to said workplace.

Additionally, businesses will have to develop a written COVID-19 Control Plan outlining how they will prevent the spread of COVID-19 in the workplace. The Commonwealth has published a template that businesses can complete to comply with this step, which must be kept on premises for inspection. Businesses also must complete, sign, and post a Compliance Attestation Poster in an area visible to employees and visitors. Businesses must display posters describing the rules for maintaining social distancing, hygiene protocols, and cleaning and disinfecting.

Lastly, certain businesses will also have to comply with Sector Specific Safety Standards, which contain more detailed restrictions and requirements tailored towards particular industries, including laboratory and life science facilities and offices. Compliance with the Mandatory Workplace Safety Standards set forth above is not necessarily sufficient to comply with applicable Sector Specific Safety Standards.

Takeaways

Governor Baker's phased reopening strategy gives businesses permission to reopen, but reopening is not mandatory, and businesses should balance their business needs, ability to comply with the Commonwealth's safety standards, and the safety of their workforce in determining whether reopening their business is appropriate at this time. If so, businesses should immediately begin taking steps to prepare for employees' return to the worksite by complying with the requirements discussed above.

In addition to the requirements above, businesses must comply with their obligations under the Americans with Disabilities Act and the Occupational Safety and Health Act, and take other precautionary steps to protect their workforce and limit potential liability associated with employees' exposure to COVID-19 at the worksite. To help businesses manage all of these considerations, comply with evolving legal requirements, and ensure that employees return to a safe working environment, Wilson Sonsini and its technology subsidiary, SixFifty, have created an automated Return-to-Work Toolkit. The Return-to-Work Toolkit includes: 1) an automated assessment to help businesses confirm their back-to-workplace readiness; 2) customizable return-to-work policies and other documents to govern how businesses transition their employees back to the office; 3) an online questionnaire that businesses should deploy daily to determine who can safely enter the workplace and track employee status and notifications; and 4) an employee acknowledgement whereby employees provide consent for testing and screening and agree to return any company confidential information that was removed from the worksite for purposes of telecommuting.

In Massachusetts, essential businesses and businesses reopening during Phase 1 will need to quickly become fluent in the safety standards referenced in the Report and take all necessary steps to bring the business into compliance. Further, considering the novelty of the COVID-19 pandemic and the safety measures it has necessitated, businesses will have to continue to monitor the Commonwealth's guidance on reopening in anticipation of revisions and additions on the matter. Wilson Sonsini is prepared to help employers navigate these extensive requirements and ensure that businesses are maintaining operations or reopening in a way that is compliant with the requirements of the Report (as well as all other future guidance) and safe for their employees.