Massachusetts Economy to Reopen in Four Phases: Will Employers Be Able to Meet New Mandatory Workplace Safety Standards?

Governor Charlie Baker has announced plans to reopen the Massachusetts economy in four phases beginning May 18.   Non-essential businesses have been closed in the state since Governor Baker issued an Executive Order closing all non-essential businesses on March 23 due to the COVID-19 pandemic.  The four phases – Start, Cautious, Vigilant, and the New Normal – will be implemented based on public health guidance with the goal of methodically allowing certain businesses, services, and activities to resume, while protecting public health and limiting a resurgence of new COVID-19 cases.

As part of the phased reopening, Mandatory Workplace Safety Standards were published which will apply to all businesses in Massachusetts.  The standards were developed by the Department of Public Health (DPH) and the COVID-19 Command Center in consultation with the Reopening Advisory Board.  It is expected that the safety standards will be supplemented by sector-specific safety protocols and recommended best practices.  Notably, Massachusetts businesses must certify compliance with the Mandatory Workplace Safety Standards, although further details about the attestation requirement have not yet been released.  The Mandatory Workplace Safety Standards create new workplace requirements for social distancing, hygiene, staffing and operations, and cleaning. 

Among the requirements of the new Mandatory Workplace Standards, all persons, including employees, customers, and vendors should remain at least six feet apart to the greatest extent possible.  The Standards also require employers to establish protocols to ensure that employees can practice adequate social distancing and require face masks for all employees. Employers are also required to provide hand washing capabilities throughout the workplace, ensure frequent hand washing by employees and adequate supplies to do so, and provide regular sanitization of high touch areas, such as workstations, equipment, screens, doorknobs, restrooms throughout work site. 

The new Standards also require employers to take certain actions including: providing training for employees regarding the social distancing and hygiene protocols; establishing a plan for employees who become ill from COVID-19 at work and a return-to-work plan; and establishing and maintaining cleaning protocols specific to the business.  The Reopening Advisory Board is preparing a full report which is scheduled to be provided to Gov. Baker by May 18th

The question remains whether employers will be able to meet and attest to compliance with these new standards.  Mercer is conducting an ongoing survey of employers that have remained open during the COVID-19 pandemic to find out how the employers have adapted.  Notably, the survey may provide insight as to challenges other employers have experienced.  30% of survey respondents indicate problems with maintaining social distancing between customers and employees.   63% of employers indicate they intend to provide masks to employees, but 37% of respondents reported difficulty in sourcing enough masks to purchase.  Furthermore, Lysol and similar disinfectant products and hand sanitizer are very difficult to acquire and appear to be out of stock at many suppliers.  Given the difficulties in acquiring supplies and maintaining social distancing, it is unclear how employers will be able to certify their compliance with the new Massachusetts Mandatory Workplace Safety Standards. 

The CDC, OSHA, DOL and EEOC also have issued guidance for employers reopening their workplaces.  Any reopening will require careful planning, written policies, and staff training. 

For assistance with reopening your business, returning employees to work, drafting new policies and compliance with the new Mandatory Workplace Safety Standards, employers should consult labor and employment counsel for guidance.

© May 12, 2020


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