On July 6, 2020, in connection with Massachusetts entering Phase Three of the Commonwealth’s COVID-19 reopening plan, the Massachusetts Executive Office of Housing and Economic Development published the Phase III Step 1 Workplace Safety Standards for Office Spaces (the “Phase III Standards”). The Phase III Standards revise the minimum safety standards for office spaces in Massachusetts, addressing the four categories of Social Distancing, Staffing and Operations, Hygiene Protocol, and Cleaning and Disinfecting.
As summarized in a Goodwin May 19, 2020, client alert, Massachusetts businesses must comply with sector-specific Mandatory Workplace Safety Standards. The Workplace Safety Standards for Office Spaces were issued on May 18, 2020 (the “Phase I Standards”), updated on June 8, 2020 (the “Phase II Step 1 Standards”), and further updated on June 19, 2020 (the “Phase II Step 2 Standards”). While changes were made to safety standards between the Phase I Standards and the Phase II Step 2 Standards — such as increasing maximum occupancy levels of buildings, allowing cafeteria spaces to reopen for take-out food, and requiring physical partitions of at least six feet in height to separate workstations that cannot be spaced out — the Phase III Standards involve relatively more material changes to an employer’s safety protocols in office spaces, as explained below.
SCREENING WORKERS AT EACH SHIFT
- Facilities are now required to screen workers “at each shift” to ensure that each worker is not experiencing COVID-19 symptoms, has not been exposed to COVID-19, and has not been asked to self-isolate or quarantine by the worker’s doctor or a local public health official.
- The Phase III Standards provide that the screening at each shift must ensure that a worker is not experiencing any COVID-19 symptoms such as a “fever (100.0 and above)” or chills, cough, shortness of breath, sore throat, fatigue, headache, muscle/body aches, runny nose/congestion, new loss of taste or smell, or nausea, vomiting, or diarrhea.
- In addition, at each shift, facilities must ensure that a worker has not had “close contact” with an individual diagnosed with COVID-19. The Phase III Standards significantly revised the definition of “close contact” from being within 6 feet for 10 minutes or more of an individual diagnosed with COVID-19 to “living in the same household as a person who has tested positive for COVID-19, caring for a person who has tested positive for COVID-19, being within 6 feet of a person who has tested positive for COVID-19 for 15 minutes or more, or coming in direct contact with secretions (e.g., sharing utensils, being coughed on) from a person who has tested positive for COVID-19, while that person was symptomatic.”
- Any worker experiencing COVID-19 symptoms, who has been in “close contact” with an individual diagnosed with COVID-19, and/or who has been asked to self-isolate or quarantine must be sent home.
Employers that are already conducting some form of screening (for example, through a written questionnaire, a daily app with questions, or an in-person screening) should review and update those processes in accordance with the Phase III Standards. Employers that have not previously conducted any sort of screening will need to implement one and should coordinate with building operations personnel and building management, as applicable, to determine whether the employer or building management will be screening workers. Regardless of whether employers are establishing new screening protocols or updating existing ones, employers should be mindful of employee privacy considerations. Employee medical information gathered from the screening mandated by the Phase III Standards is subject to confidentiality requirements under the Americans with Disabilities Act (ADA). Among other things, to the extent it is retained by the employer, such information must be maintained in a medical file separate from an employee’s personnel file and disclosure of the information should be limited. In addition, if employers maintain an onsite screening protocol, that should be designed to protect employee privacy. For example, if employers conduct the screening through verbal questions, such screening should be in a private space to avoid colleagues and third parties from overhearing responses to the questions. Regardless of whether questions are asked verbally or through a written/electronic questionnaire, employers should ensure that their screening protocol complies with confidentiality and privacy obligations, and then train the personnel administering the screening accordingly.
The screening requirements under the Phase III Standards do not identify a specific lookback period to be applied to the questions about workers’ symptoms, exposure, and isolation or quarantine. However, CDC guidance (as explained in Goodwin’s June 16, 2020, client alert) provides that an individual exposed to a person with COVID-19 should quarantine at home for 14 days after the person’s last exposure. Accordingly, employers may consider qualifying the screening questions related to symptoms, exposure, and isolation or quarantine with a 14-day lookback period. Employers may also want to consider the CDC guidance that permits critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19 to continue working even after such exposure so long as they do not have symptoms and follow certain practices prior to and during their work shift. Although the Phase III Standards do not explicitly discuss this particular aspect of CDC guidance, the Phase III Standards do include general links to CDC guidance.
To ensure that employees with a fever are sent home, an employer may choose to conduct onsite temperature checks or have employees take their own temperature at home or report if they are feeling feverish. Taking an employee’s body temperature is a medical examination or a medical inquiry under the ADA, but based on guidance by the Equal Employment Opportunity Commission, such an examination or inquiry is permissible during the current pandemic. If the employer administers the temperature taking process, the employer should be mindful of employee privacy. In addition, the employer’s administration of the temperature taking process may trigger OSHA recordkeeping obligations.
MAXIMUM OCCUPANCY AT BUILDINGS
- The Phase III Standards further revise the maximum occupancy limitations to 50% of the building’s maximum permitted occupancy as documented in the building’s occupancy permit on record with the municipal building department or other municipal record holder. For buildings for which no permitted occupancy limitation is on record, such buildings may allow 10 persons per 1,000 square feet of accessible space. In any case, no enclosed space within a facility may exceed an occupancy level of 10 persons per 1,000 square feet. Pursuant to the Phase III Standards, occupancy counts and calculations must include customers, staff, and other workers.
- The previously existing narrow exceptions to the maximum occupancy limitations (i.e., a demonstrated need for relief based on public health or public safety considerations or where strict compliance may interfere with the continued delivery of critical services) remain unchanged by the Phase III Standards.
- The Phase III Standards also expressly require that each office monitor customer and worker entries and exits in order to limit occupancy according to the foregoing.
- The Phase III Standards provide that telework that is feasible is now “encouraged” rather than required.
As employers navigate phasing out telework and bringing employees back into physical office spaces, employers must be mindful of (1) the maximum occupancy limitations summarized above, (2) implementing a return-to-the-office plan in a non-discriminatory manner, and (3) considering continued telework as a reasonable accommodation under the ADA for employees who, pursuant to CDC guidance, are at an increased risk for severe illness if they contract COVID-19.
LOG FOR CONTACT TRACING
- The log that is to be maintained for purposes of contact tracing is no longer required to include everyone who comes in contact with the site such as temporary visitors, but rather only “workers and customers.” The log should include the name, date, time, and contact information of the worker or customer.
Employers may update their existing log-maintenance practices to account for the revised standards, which will be less cumbersome than the log-maintenance requirements under the Phase II Step 2 Standards. Of course, an employer may choose to continue to comply with the Phase II Step 2 Standards by logging everyone who comes in contact with the site, including temporary visitors and those doing “material drop-offs.”
SIGNAGE & SANITATION
- In addition to establishing directional hallways and passageways to minimize contacts (a requirement in each of the previous Workplace Safety Standards for Office Spaces), office spaces now must also mark rooms and hallways to demarcate six feet of separation.
- The Phase III Standards also require that alcohol-based hand sanitizers with at least 60% alcohol be made available at entrances and throughout floor areas for workers.
- In addition, office spaces are required to clean commonly touched surfaces in restrooms (e.g., toilet seats, doorknobs, stall handles, sinks, paper towel dispensers, soap dispensers) frequently and in accordance with CDC guidelines.
- Further, office spaces should maintain operating hours that allow for ongoing off-hour sanitation and cleaning. Also, to increase airflow, office spaces must open windows and doors when and where possible.
- The prior safety standards provided that business-sponsored travel be limited. The Phase III Standards, however, cite to the Commonwealth’s Out-of-State Travel Guidance for guidance on business-sponsored travel. Under the Commonwealth’s current Out-of-State Travel Guidance, all travelers to Massachusetts (including Massachusetts residents returning home) are instructed to self-quarantine for 14 days, except if the traveler is arriving from Rhode Island, Connecticut, Vermont, New Hampshire, Maine, New York, or New Jersey.
Employers should review their travel-related policies, revise if necessary, and periodically check the Commonwealth’s Out-of-State Travel Guidance (as well as federal travel restrictions) for updated guidance on business-sponsored travel.
As Massachusetts presses forward with its COVID-19 reopening plan, the Phase III Standards relax certain restrictions on office spaces (and employers) while also imposing some new requirements to control the spread of COVID-19 in the Commonwealth. In addition to the updates summarized above, comparable revisions are included in the revised Office Spaces-Specific Checklist and Office Spaces-Specific Protocol Summary. Employers can access the Phase III Standards and the Phase III Step 1 Office Spaces-Specific Checklist and Protocol Summary here. As employers revise existing and implement new protocols in light of the Phase III Standards, the Employment practice at Goodwin will be ready to assist.
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Robert M. HalePartnerChair, Employment
Christina S. BitterCounsel