As some Connecticut businesses prepare to reopen on May 20, how will state “reopening” rules affect the essential businesses that have been operating all along? This is an important question for essential businesses and state regulators alike.

On May 9, Connecticut’s Department of Economic and Community Development (DECD) released a series of industry sector-specific guidelines for businesses permitted to open on May 20 under “phase one” of the state’s reopening plan. The Sector Rules for May 20th Reopen establish safeguards for certain business operations and social interactions. We previously discussed these rules for businesses permitted to reopen on or after May 20 in this Insight.

DCED’s Safe Workplace Rules for Essential Employers

Last month, the governor of Connecticut issued Executive Order No. 7V requiring, among other things, that every open workplace in the state take specific protective measures to reduce the risk of transmitting COVID-19 among employees, customers, and other people authorized to enter the workplace.  The governor directed the Commissioner of Economic and Community Development (in consultation with the Commissioner of Public Health) to issue "legally binding statewide rules" prescribing protective measures that are mandatory for all essential businesses and nonprofits and any other business or nonprofit then-permitted to operate in the state.

The rules included: Controlling Contact Between Employees and Other Employees or Customers; Eliminating Transmission Points, Including Frequent Cleaning of all Touch Points; and Guidelines for Essential Employees to prevent the spread of COVID-19.  The rules were updated April 17 to require individuals to wear face coverings when in public and unable to maintain social distancing protocols.  Employers are responsible for providing masks or face coverings to their employees, or, failing that, to provide tools and instructions for employees to make their own.  

DCED’s Essential Safe Store Rules

A separate set of rules – Essential Safe Store Rules – applies to essential retail locations.  These essential store rules largely mirror the general rules for essential businesses, but there are some store-specific nuances, including:

• limiting occupancy to 50% of store capacity;
• marking floors to identify six-foot spacing to maximize spacing between customers;
• controlling customer flow; and
• installing Plexiglas shields to separate employees from customers at checkout locations and other areas where interaction might take place. 

Essential Businesses and Phase One of Reopening

By now, essential businesses, both retail and otherwise, should be well versed in the DECD workplace rules.  Until the governor or the DECD declares otherwise, these rules continue in force for essential businesses that have been permitted to remain open since the start of the stay at home order. This will continue to be so after the May 20 reopening, according to the DECD.

The rules for essential workplaces largely match the guidelines promulgated more recently for businesses permitted to reopen as of May 20. Both sets of rules require strict cleaning and disinfection protocols, provide that those who can work from home should continue to do so, and require employees to wear face coverings.  One significant difference, however, is that reopening businesses are limited to 50% capacity.  There is no such limitation for non-retail essential businesses that have remained open.

Essential Businesses Do Not Have to “Self-Certify”

The DECD webpage requires that all businesses that intend to reopen as authorized by the newly issued reopening rules are required to self-certify prior to May 20.  The state's online certification system is scheduled to launch this week.  In order to reopen, businesses are required to complete a self-certification on the DECD website to receive a “Reopen CT Badge,” which businesses may choose to post on their premises both to advertise adherence to the Connecticut rules and to help build customer confidence.

The DECD confirmed to us that essential businesses already operating legally do not have to submit such self-certifications. 

Next Steps

Phase one of the state’s reopening plan permits certain businesses to reopen in full or limited capacity: restaurants (for outdoor seating), offices, museums, zoos, personal services, outdoor recreation and remaining retail locations and malls. Other non-essential businesses remain closed.

The state will monitor progress of reopening based on defined public health metrics, with safeguards and controls loosened over time based on that progress.  If efforts to control the spread of the coronavirus are successful, additional businesses will be permitted to open and additional leeway will be given to those already allowed to operate as time progresses.  It is estimated that the phased reopening process will continue through September 2020.

Key Takeaways for Essential Employers

While DECD’s Sector Rules for May 20th Reopen do not specifically apply to essential businesses, they are certainly worth brushing up on. There are some recommended practices essential businesses could consider adopting based upon the rules for reopening businesses:

• Daily Health Checks – ask employees resuming on-premises work to confirm they have not experienced COVID-19 CDC-related symptoms and to monitor their own symptoms.
• Log Employees – maintain a log of employees on the premises at particular times, to support contact tracing in the event of an infection.
• Appoint a Program Administrator – appoint someone who will be accountable for overseeing the implementation of workplace rules, such as proper cleaning and social distancing protocols.
• Training – institute a training program to ensure employees are properly educated on the procedures and rules they are expected to follow.  It is also recommended that weekly refreshers be provided to reiterate important rules and communicate any changes.

If an essential business is not already doing these things, now might be a good time to start.  Make sure, however, that any health checks are done in a uniform, nondiscriminatory manner and that employee logs are consistently kept.

One safeguard mentioned in the reopening guidance—that those in high-risk groups and over the age of 65 should continue to stay home—might be sufficiently problematic that essential businesses should carefully weigh risks before adopting it. To the extent such an employer practice could be seen as discrimination among employees based on age or disability, it would generally be prohibited by state and federal law. Thus far, essential businesses have been allowed to operate without distinguishing between employees on the basis of their age or general health. It is not recommended that an essential business draw these distinctions unless the state expressly requires it in the future.

Essential employers are required to continue following the DECD’s Safe Workplace Rules for Essential Employers, even post-May 20.  These rules will be subject to change, however, as the DECD monitors the reopening process. Be alert for changes. We will update you on any significant ones as they are announced.

As the economy begins moving again, businesses will want to devote their attention to core operations.  Instituting required safeguards now and making sure they become routine, should serve essential and reopening businesses well in the long run.

At the same time it is important to remember that employers may not retaliate against workers for raising concerns about COVID-19-related safety and health conditions.  As time progresses and the economy starts moving again, we expect to see an increase in the number of such concerns being brought to management. Each complaint should be looked into promptly and fairly and the response should be documented.

With respect to employment claims as well as health matters, stay informed and stay safe.