Although many businesses currently remain closed due to COVID-19, the federal, state, and local government units in the St. Louis metro area are issuing guidance so that businesses can begin planning the process of re-opening.
Below we have summarized Federal, Illinois, Missouri, St. Charles County, St. Louis County, and St. Louis City guidance for employers to re-open businesses. The State of Missouri has announced a phased re-opening plan that commenced May 4, 2020. The State of Missouri guidance recognizes that counties and municipalities within the State may maintain more strict re-opening regulations. On May 5, 2020, the State of Illinois published a five-phased re-opening plan that creates four health regions, each with the ability to independently move through a phased approach: Northeast Illinois; North-Central Illinois; Central Illinois; and Southern Illinois. On May 8, 2020, St. Louis City and St. Louis County issued guidance for the re-opening of businesses effective May 18, 2020. We will update this alert when information becomes available. We have concluded this summary with some additional items to consider while planning business re-openings.
Federal Guidance on Re-Opening
The Federal Guidance from the CDC/White House provides benchmarks before there is a phased reopening (known as “gating criteria”):
- Downward trajectory of influenza-like illnesses reported within a 14-day period;
- Downward trajectory of COVID-like cases reported within a 14-day period;
- Downward trajectory of documented cases within a 14-day period;
- Downward trajectory of positive tests as a percent of total tests within a 14-day period;
- Hospitals can treat all patients without crisis care; and
- Robust testing program in place for at-risk healthcare workers, including emerging antibody testing.
The Federal Guidance recommends the following for individuals during all phases (and we recommend employers encourage, facilitate, and publicize these practices):
- Washing hands with soap and water or using hand sanitizer, especially after touching frequently used items or surfaces;
- Avoiding touching your face;
- Sneezing or coughing into a tissue, or the inside of elbow;
- Disinfecting frequently used items and surfaces as much as possible;
- Strongly consider using face coverings while in public, and particularly when using mass transit; and
- People who feel sick should stay home.
For all phases of the re-opening, the Federal Guidance encourages employers to develop and implement appropriate policies, in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices, regarding:
- Social distancing and protective equipment;
- Temperature checks;
- Testing, isolating, and contact tracing;
- Use and disinfection of common and high-traffic areas;
- Business travel;
- Monitoring workforce for indicative symptoms;
- Not allowing symptomatic people to physically return to work until cleared by a medical provider; and
- Developing and implementing policies and procedures for workforce contact tracing following employee COVID+ test.
Phase One of the Federal Guidance
Phase One of the Federal Guidance for employers includes the following:
- Continue to encourage telework, whenever possible and feasible with business operations;
- If possible, return to work in phases;
- Close common areas where personnel are likely to congregate and interact, or enforce strict social distancing protocols;
- Minimize non-essential travel and adhere to CDC guidelines regarding isolation following travel; and
- Strongly consider special accommodations for employees who are members of vulnerable populations.
Phase One of the Federal Guidance includes additional guidance for specific employers:
- Schools and organized youth activities (e.g., daycare, camp) that are currently closed should remain closed.
- Visits to senior living facilities and hospitals should be prohibited. Those who do interact with residents and patients must adhere to strict protocols regarding hygiene.
- Large venues (e.g., sit-down dining, movie theaters, sporting venues, places of worship) can operate under strict physical distancing protocols.
- Elective surgeries can resume, as clinically appropriate, on an outpatient basis at facilities that adhere to CMS guidelines.
- Gyms can open if they adhere to strict physical distancing and sanitation protocols.
- Bars should remain closed.
Phase Two of the Federal Guidance
Phase Two of the Federal Guidance is appropriate when States and Regions have no evidence of a rebound and that satisfy the gating criteria (listed above) a second time. Phase Two of the Federal Guidance for employers includes the following:
- Continue to encourage telework, whenever possible and feasible with business operations;
- Close common areas where personnel are likely to congregate and interact, or enforce moderate social distancing protocols;
- Non-essential travel can resume; and
- Strongly consider special accommodations for personnel who are members of a vulnerable population.
Phase Two of the Federal Guidance also provide additional guidance for specific employers:
- Schools and organized youth activities (eg., daycare, camp) can reopen.
- Visits to senior care facilities and hospitals should be prohibited. Those who do interact with residents and patients must adhere to strict protocols regarding hygiene.
- Large venues (e.g., sit-down dining, movie theaters, sporting venues, places of worship) can operate under moderate physical distancing protocols.
- Elective surgeries can resume, as clinically appropriate, on an outpatient and in-patient basis at facilities that adhere to CMS guidelines.
- Gyms can remain open if they adhere to strict physical distancing and sanitation protocols.
- Bars may operate with diminished standing-room occupancy, where applicable and appropriate.
Phase Three of the Federal Guidance
Phase Three of the Federal Guidance is appropriate when States and Regions have no evidence of a rebound and that satisfy the gating criteria (listed above) a third time. Once state and regions have met this benchmark, employers may have “unrestricted staffing.”
Phase Three of the Federal Guidance for specific employers provides the following:
- Visits to senior care facilities and hospitals can resume. Those who interact with residents and patients must be diligent regarding hygiene.
- Large venues (e.g., sit-down dining, movie theaters, sporting venues, places of worship) can operate under limited physical distancing protocols.
- Gyms can remain open if they adhere to standard sanitation protocols.
- Bars may operate with increased standing room occupancy, where applicable.
Missouri Re-Opening Plan
On April 27, 2020, Governor Mike Parson announced the first phase of the “Show Me Strong Recovery” Plan outlining how Missouri will gradually begin to reopen economic and social activity on Monday, May 4, 2020. This plan is also outlined in an order issued by Missouri’s Director of the Department of Health and Senior Services regarding re-opening procedures that is applicable from May 4, 2020 to May 31, 2020.
In accordance with the guidelines from the White House and CDC, the Missouri Order indicates every person and business in the State of Missouri shall abide by social distancing requirements, including maintaining six feet of space between individuals. Individuals performing job duties that require contact with other people closer than six feet should take enhanced precautionary measures to mitigate the risks of contracting or spreading COVID-19.
Restaurants may offer dining-in services, provided that the limitations on social distancing and other precautionary public health measures, including proper spacing of at least six feet between tables, lack of communal seating areas to parties that are not connected, and having no more than ten people at a single table, are properly adhered to. The continued use of drive thru, pickup, or delivery options is encouraged throughout the duration of the Order.
Any entity that employs individuals that is engaged in retail sales to the public, shall limit the number of individuals in any particular retail location as follows: (1) 25% or less of the entity’s authorized fire or building code occupancy for a retail location with square footage of less than ten thousand square feet; (2) 10% or less of the entity’s authorized fire or building code occupancy for a retail location with square footage of ten thousand square feet or more.
Nothing in the Missouri order limits the right of local city and counties to make other rules and orders that are consistent with this order. In the St. Louis metropolitan area, the orders from the City of St. Louis and St. Louis County will likely be more stringent and will likely continue to be more stringent than the orders from the State of Missouri.
St. Charles County Re-Opening Guidance
On April 28, 2020, St. Charles County Executive Steve Ehlmann announced that the county would follow the state’s “Show Me Strong Recovery” Plan. However, the St. Charles County Department of Public Health has offered additional recommendations for businesses to increase health and safety measures.
For all businesses, the following is recommended by the St. Charles County Department of Public Health:
- Implement workplace health screenings for employees;
- Regularly clean and disinfect high-touch surfaces such as tables, chairs, door handles, floors, bathrooms, etc.;
- Employees and guests who are sick should stay home;
- Wash hands frequently or use hand sanitizer with at least 60 percent alcohol;
- Wear cloth face covering when around others; and
- Post reminders about face coverings, hygiene and social distancing for employees and customers.
For office buildings, the following is recommended:
- Wear cloth face covering when around others;
- Post reminders about face coverings, hygiene and social distancing for employees and customers;
- Increase ventilation by opening windows or adjusting air conditioning;
- Stop handshaking practices – use other non-contact methods of greeting; and
- Clean hands at the door by making hand sanitizer available, and schedule regular hand-washing reminders by email.
The St. Charles health department also outlined specific guidance for schools, transportation companies, aquatic facilities, residential care facilities, childcare facilities, restaurant, and retail. See https://www.sccmo.org/2122/COVID-19-Guidelines-for-Employers
St. Louis County Re-Opening Order
On May 8, 2020, the St. Louis County Health Department issued an order effective Monday, May 18, 2020, which replaces the Stay at Home Order and certain other restrictions on gatherings. The Order is effective until rescinded or modified by the Director of the Department of Public Health.
The order notes that all gatherings (defined as people coming together as a group, whether formal or informal, whether public or private and whether indoor or outdoor) pose an increased risk of transmission and should be voluntarily avoided whenever possible.
All Businesses that engage in direct interactions with members of the public, and primarily provide goods for sale, food or drink for consumption, personal services requiring sustained in-person contact, or religious or spiritual services, must:
- Limit the number of individuals in any particular location to 25% or less of the entity’s authorized fire or building code occupancy in facilities with square footage of less than ten thousand square feet; or 10% or less of the entity’s authorized fire or building code occupancy in facilities with square footage of ten thousand square feet or more;
- Install physical barriers between customers and employees where possible or otherwise ensure six feet of distance between customers and employees, particularly in check-out lines, return-lines or any other place where there is prolonged contact between the customer and employee;
- In all areas which are prone to lines or congregation, install clear markings with signage, tape, or other means that show six feet of distance as the appropriate spacing between customers;
- Provide signage inside and outside the facility outlining Social Distancing Requirements, limitations on crowd size, and procedures to limit crowd size;
- Prohibit customers from bringing outside containers, including reusable bags or boxes, into the facility;
- Establish hours of operation, wherever possible, for individuals at high-risk of experiencing adverse outcomes from COVID-19 as defined by the CDC; and
- Arrange for contactless payment, pick-up and delivery options whenever feasible and provide postings as to the availability of such services.
All other business (not listed above) must abide with the following precautions:
- Do not organize or attend an intentional gathering of more than 10 people in a single space or room, indoors or outdoors;
- Comply with Social Distancing Requirements and are encouraged to comply with face covering recommendations.
Except when wearing a face covering would compromise the health of an individual, face coverings are recommended to be worn by all residents over the age of two in the following areas:
- All public closed spaces;
- Outside when six feet of distance cannot be maintained from other non-household members; and
- On any form of public transit.
All Businesses must comply with Social Distancing Requirements and disinfection processes, and must take the following additional precautions:
- Require frequent disinfection processes of all high touch surfaces and any other areas that may be frequently touched by customers, employees, volunteers or any other individuals;
- Provide reasonable breaks for employees and volunteers to wash hands;
- Train employees about procedures related to disinfection processes and Social Distancing Requirements;
- Provide employees and volunteers working in the businesses’ facility with face coverings or supplies to make face coverings;
- Require employees or volunteers to wear face coverings while at work, unless such employee or volunteer is working alone in an enclosed area or has a medical reason not to wear a face covering;
- Conduct daily screening of employees and volunteers who work in their facilities for symptoms of COVID-19; and
- Encourage employees or volunteers to quarantine or isolate if they have or are believed to have COVID-19 or if they have come into contact with individual(s) with COVID-19.
Businesses may deny entry to members of the public who refuse to wear face coverings for non-medical reasons. A business shall not require the individual to produce medical documentation verifying a medical condition or ask about the nature of a medical condition. If the business is providing medication, medical supplies or food the business should provide alternate methods of pick up or delivery of such goods.
The following businesses and venues are prohibited from operating or re-opening except with respect to the minimum necessary activities to maintain the value of a business’s inventory, provide security, process payroll or employee benefits, or to facilitate employees of the business being able to continue to work remotely: entertainment, conference and sporting venues (regardless of square footage); gyms and fitness centers; banquet rooms; bars and businesses that primarily serve alcohol and do not serve full meals are limited to curbside and pickup service; indoor and outdoor pools except those located at an individual’s residence; sporting events; sports courts; and playgrounds.
St. Louis County also provided the following guidance to employers:
City of St. Louis Re-Opening Guidelines
Beginning May 18, 2020, the City of St. Louis will begin to allow some businesses that were previously ordered to close under its COVID-19 Stay at Home order to gradually begin reopening. The following guidance is provided for businesses:
- Maintain six feet of distance between employees and consumers;
- Consider installing physical barriers between customers and employees;
- Consider using tape or other means to increase compliance with social distancing recommendations;
- Educate employees on all procedures related to social distancing requirements;
- Post signage regarding face coverings, hygiene, and social distancing for employees and customers;
- Consider providing separate operating hours for vulnerable populations and high-risk individuals to allow for maximum social distancing;
- Consider other techniques to increase social distancing such as staggered shifts, etc.;
- Encourage telework where feasible; and
- Retail establishments must comply with the State of Missouri’s order regarding capacity restrictions.
Face Masks and Gloves:
- Provide face masks, or supplies to make face masks, to all employees and volunteers working in the business;
- Require employees or volunteers to wear face masks at work, unless an employee or volunteer is working alone in an enclosed area or is working outside and maintaining social distancing; and
- Gloves should be worn where appropriate.
- Provide breaks for employees for hand washing or sanitizing opportunities throughout the day; and
- Make hand sanitizer available at building openings for the public.
- Perform proper cleaning per CDC guidelines;
- Provide material and education regarding proper cleaning procedures; and
- Require employees to routinely disinfect all high touch surfaces including any areas frequently touched by customers or employees.
- Establish daily protocols to evaluate employee health; and
- Allow employees to quarantine.
The City of St. Louis also provide specific guidance for certain industries, available at https://www.stlouis-mo.gov/government/departments/health/communicable-disease/covid-19/.
Illinois Re-Opening Plan
On May 5, 2020, Illinois published a five-phased re-opening plan called “Restore Illinois.” It creates four health regions, each with the ability to independently move through a phased approach: Northeast Illinois; North-Central Illinois; Central Illinois; and Southern Illinois.
The five phases for each health region are as follows:
Phase 1 – Rapid Spread: Every region has experienced this phase once already, and could return to it if mitigation efforts are unsuccessful.
Phase 2 – Flattening: Nonessential retail stores reopen for curb-side pickup and delivery. Illinoisans are directed to wear a face covering when outside the home and can begin enjoying additional outdoor activities like golf, boating and fishing while practicing social distancing. To varying degrees, every region is experiencing flattening as of early May.
Phase 3 – Recovery: The rate of infection among those surveillance tested, the number of patients admitted to the hospital, and the number of patients needing ICU beds is stable or declining. Manufacturing, offices, retail, barbershops and salons can reopen to the public with capacity and other limits and safety precautions. Gatherings limited to 10 people or fewer are allowed. Face coverings and social distancing are the norm.
Phase 4 – Revitalization: The rate of infection among those surveillance tested and the number of patients admitted to the hospital continues to decline. Gatherings of 50 people or fewer are allowed, restaurants and bars reopen, travel resumes, childcare and schools reopen under guidance from the Illinois Department of Public Health. Face coverings and social distancing are the norm.
Phase 5 – Illinois Restored: With a vaccine or highly effective treatment widely available or the elimination of any new cases over a sustained period, the economy fully reopens with safety precautions continuing. Conventions, festivals and large events are permitted, and all businesses, schools and places of recreation can open with new safety guidance and procedures in place reflecting the lessons learned during the COVID-19 pandemic.
As businesses begin their re-opening planning, we also recommend the following:
- Plans should be flexible. Businesses will need to be able to quickly transition if employees become ill or there is a local outbreak causing a shutdown.
- Have a “re-opening” plan to span 18 months.
- Create and clearly communicate a safety and cleaning plan:
- Include visibly demonstrating cleanliness and possible physical changes (examples include touchless doors, hand-sanitizer availability, sneeze guards/Plexiglas);
- Consider regular flow of employees/customers and possible spatial changes (examples include one-way walkways, spacing of desks and workspaces); and
- Review and follow CDC guidance for cleaning and disinfecting public spaces, workplaces, businesses:
- Be prepared to address employees’ concerns, including:
- Child care issues while child care is still closed (family leave under Families First Coronavirus Response Act/Emergency Family and Medical Leave Expansion Act may apply);
- Interactions with clients/customers;
- How employees should interact with each other and customers (staying 6 feet apart, avoiding handshakes); and
- Challenges in getting to work/public transportation.
- Consider how COVID-19 accommodations and safety measures may require other adjustments. For example:
- Consider how breaks are scheduled and whether they should be staggered; and
- Determine if shifts need to be adjusted to increase social distancing or accommodate other changes. For example, if there are limits on the number of individuals in an elevator, you may want to stagger start times to avoid long lines.
- Address employee morale:
- Consider hazard pay, premium pay, or bonuses for front line employees;
- Communicate resources such as Employee Assistance Programs (EAPs); and
- Help employees ease back into at-work routines.
- Consider flexible telework options to avoid employees coming to work when they may be ill and to address childcare issues in the next three months.
- Update forms and policies:
- Telework and computer access forms and agreements with employees; and
- Forms to obtain sick leave or family leave under Families First Coronavirus Response Act.
Who to Contact:
Please reach out to your Lashly & Baer attorney or one of the Cross-Disciplinary Coronavirus Practice Team Attorneys if you have any questions about your re-opening plans.
- Julie Z. Devine
- James C. Hetlage
This summary and legal alert is an overview of the new guidance from federal, state, and local authorities. It is not intended to be, and should not be construed as, legal advice for a specific factual situation.