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Guidelines for opening up America

On April 16, 2020, the White House issued non-binding guidance for states and localities to consider in determining when and how to reopen businesses, schools and other gathering locations and to lift other COVID-19 mitigation restrictions. It developed a three-phase approach utilizing the advice of public health experts that provides for a gradual reintroduction of social activity. The White House urges caution and suggests this measured response to limit possible backsliding that could occur with the increase in our social interactions. Without a vaccine or treatment, states and localities will need to use their best judgment to protect their populations, especially the very vulnerable.

Proposed state or regional gating criteria

Before a state or locality proceeds to the “Phased Comeback,” the White House proposes it meets specific “gating” criteria. 

There should be a downward trajectory of influenza-like illnesses (ILI) and COVID-like cases reported within a 14-day period. 

There must be a downward trajectory of documented cases within a 14-day period.

There must be a downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests).

Hospitals and other medical systems must be able to: (1) treat all patients without crisis care and; (2) successfully implement a robust testing program in place for at-risk healthcare workers, including emerging antibody testing. 

The White House urged flexibility in tailoring the gating criteria to local circumstances (e.g., metropolitan areas that have suffered severe COVID-19 outbreaks, rural and suburban areas where outbreaks have not occurred or have been mild). 

Core state preparedness responsibilities

The White House cautioned that each state and locality must be able to provide core state preparedness responsibilities before lifting their shuts downs and reopening: 

Testing and contact tracing 
Each state must have the ability to: (1) quickly set up safe and efficient screening and testing sites for symptomatic individuals and trace contacts of COVID-19 positive results; (2) test Syndromic/ILI-indicated persons for COVID-19 and trace contacts of COVID-19 positive results; and (3) ensure sentinel surveillance sites are screening for asymptomatic cases and that contacts for COVID-19 positive results are traced (sites operate at locations that serve older individuals, lower-income Americans, racial minorities and Native Americans). 

Healthcare system capacity
Each state’s healthcare system must have the ability to: (1) quickly and independently supply sufficient personal protective equipment and critical medical equipment to handle the corresponding dramatic surge in need; and (2) surge intensive care unit capacity. 

Each state must be able to: (1) protect the health and safety of workers in critical industries; (2) protect the health and safety of those living and working in high-risk facilities (namely senior care facilities); (3) protect employees and users of mass transit; (4) advise citizens regarding protocols for social distancing and face coverings; and (5) monitor conditions and immediately take steps to limit and mitigate any rebounds or outbreaks by restarting a phase or returning to an earlier phase, depending on the severity. 

Critically, the White House did not offer funding or suggest how the states and localities pay for these core preparedness responsibilities. It also proposed no role for the federal government in providing uniform approaches to satisfy the core preparedness responsibilities.  

Universal guidelines

The White House recommended that the following guidelines apply to all individuals and employers throughout each phase. 

All individuals should continue to adhere to state and local guidance as well as complementary Centers for Disease Control and Prevention (CDC) guidance, particularly with respect to face coverings. All individuals should: 

Practice good hygiene 
All individuals should continue to practice good hygiene, which includes: (1) washing their hands with soap and water or using hand sanitizer, especially after touching frequently used items or surfaces; (2) avoid touching their faces; (3) sneeze or cough into a tissue or the inside of their elbows; (4) frequently disinfect used items and surfaces; and (5) strongly consider using face coverings while in public and particularly when using mass transit. 

Individuals who feel sick should stay home. If individuals do not feel well, they should: (1) refrain from going to work or school; and (2) contact and follow the advice of their medical providers. 

All employers should develop and implement appropriate policies, in accordance with federal, state, and local regulations and guidance, and seek to be informed by their industry’s best practices regarding: (1) social distancing; (2) the use of protective equipment; (3) taking temperature checks; (4) appropriate sanitation; (5) the use and disinfection of common and high-traffic areas; and (6) business travel. 

All employers should monitor their workforces for indicative symptoms and should restrict symptomatic individuals from physically returning to work until they are cleared by their medical providers. 

All employers should develop and implement policies and procedures for workforce contact tracing in the event an employee tests positive for COVID-19.

Vulnerable Individuals 
Vulnerable individuals are identified as: (1) elderly individuals; and (2) individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised through chemotherapy for cancer and other conditions requiring such therapy. 

Phases (click here for a helpful phase chart)

The White House suggested states and localities implement their reopenings using three graduated phases. Each phase gradually increases social interaction. The guidelines direct strict social distancing for Phase 1, which is reduced to moderate social distancing in Phase 2, and limited social distancing in Phase 3. Unfortunately, it offered no definition or explanation as to what these terms (strict, moderate or limited) mean in practice. States and localities are urged to proceed cautiously and be prepared to put on the breaks and even revert to an earlier phase if infections rise or the percentage of positive tests as compared to the whole increases. The White House proposes a 14-day period between each phase.

The lockdown and stay-at-home orders were implemented to reduce the spread of the virus, thus allowing healthcare providers to treat those who become sick. Without a vaccine or treatment, there presently is no way to wholly eliminate the spread of the virus. Each state and locality is urged to proceed cautiously and deliberately when re-introducing and expanding their populaces’ social interactions to avoid increasing infections that could overwhelm hospitals with limited beds and respirators.

For more information regarding the Guidelines for Opening Up America Again, please contact a Chuhak & Tecson Employment law attorney. 

Client alert authored by Andrew G. Fullett (312 855 4313), Associate, and Jeralyn H. Baran (312 855 4613), Principal and Employment group leader.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.
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