Georgia Employers Receive Guidance On Governor’s Back-To-Business Order (UPDATED)
As expected, Governor Brian Kemp issued a detailed executive order to begin to re-open businesses throughout the state in the hopes that the worst of the COVID-19 crisis has passed. The order, which begins to take effect on April 27 and calls for staggered reopenings for various businesses through May 13, supersedes any conflicting county or municipal orders. Although the order is detailed, it leaves to employers the responsibility to determine where certain recommendations are “practicable” and the means to satisfy the guidelines. What do you need to know about this order, and what should you do to prepare for the reopening of your business?
[Ed. Note: The guidelines and requirements for businesses have been replaced with very similar guidelines and requirements detailed below in a May 12 Executive Order, which remains in effect through May 31, 2020.]
Details Of The Order
The order begins by requiring social distancing, instructing Georgians to refrain from “Gathering” and forbidding non-Critical Infrastructure businesses from allowing “Gatherings of Persons.” The order encourages using face coverings while outside private residences and requires residents to adhere to CDC guidance on sanitation.
[Ed. Note: The May 12 Executive Order extends the shelter-in-place requirement for the medically fragile through June 12, 2020, though, like the past order, the medically fragile may still undertake several activities including “engaging in gainful employment.”]
The order defines “Gathering” as more than 10 persons physically present at a single location, if, to be present, persons are required to stand or be seated within six feet of any other person. Groups of 10 or more are allowed if they are incidental or transitory, and groups in theaters and restaurants are limited to six. [Ed. Note: The May 12 Executive Order now allows parties of 10 for restaurants and theaters.] The order also encourages all businesses to provide certain coverings and personal protective equipment (PPE) particular to their industry for employees. [Ed. Note: The May 12 Executive Order continues the requirement that restaurant workers wear face coverings. It strongly encourages all other businesses to provide PPE “as available and appropriate to the function and location of the worker within the business location.”]
The order again adopts the definition of what constitutes “Critical Infrastructure” as those sectors listed in the most current CISA guidance and incorporates businesses that supply essential goods to those sectors as well as legal services, home hospice, and certain non-profit mental health and food services in that definition. As with the previous order, business that are Critical Infrastructure are encouraged, but not required, to undertake the list of precautions listed in the order that have been previously recommended for Critical Infrastructure and required for other businesses operating as “Minimum Basic Operations.” That catch-all category, “Minimum Basic Operations,” has been discarded, however, in favor of an assortment of recommendations and requirements for different types of businesses, along with a new list of 21 requirements that mimics the prior requirements for businesses operating as “Minimum Basic Operations,” adding an increased emphasis on cleaning and sanitization for all businesses.
[Ed. Note: The May 12 Executive Order now allows the use of PIN pads and recommends frequent cleaning of those and other electronic signature devices. It also lists 22 requirements for all non-critical businesses not specifically enumerated in the Order, adding the following to the prior list of requirements: “If the entity engages volunteers or has members of the public participate in activities, prohibiting volunteering or participation in activities for persons diagnosed with COVID-19, having exhibited symptoms of COVID-19, or having had contact with a person that has or is suspected to have COVID-19 within the past 14 days.”]
Restaurants And Social Clubs
The order releases hotly anticipated guidance for restaurants and dine-in services, effective at 12:00 a.m. on Monday, April 27, 2020. Subject to these requirements, restaurants and private social clubs may once again provide dine-in services beginning April 27.
The order includes 39 requirements for restaurants and provides a formula for determining occupancy: no more than 10 restaurant patrons are allowed per 500 feet of public restaurant or social club space (not including non-public spaces, restrooms, and hallways). So, for example, a restaurant with 3,000 feet of public space would be permitted to have no more than sixty (60) patrons at any given time. [Ed. Note: The May 12 Executive Order now allows 10 patrons per 300 feet of public restaurant space. So, for example, a restaurant is now allowed to have 100 patrons in its 3,000 feet of public space.] The order notes that none of these requirements apply to nursing home or hospital dining services. Those guidelines for restaurants and dine-in services are:
- Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath; [Ed. Note: The May 12 Executive Order adds difficulty breathing, fever, chills, muscle pains, sore throat, or new loss of taste or smell to the symptom list, consistent with current CDC guidance.]
- Requiring workers who exhibit signs of illness to go home if working and not report to work or to seek medical attention;
- Screening those employees for symptoms before working;
- Following CDC guidance for employees who have known or suspected COVID-19;
- Implementing teleworking and virtual meetings where possible;
- Implementing staggered shifts where possible;
- Training employees on the importance of handwashing, the use of hand sanitizers with at least 60% alcohol, and providing clear instruction to avoid touching hands to face;
- Requiring all employees to wear face coverings at all times and to clean or replace them daily; [Ed. Note: The May 12 Executive Order allows workers to wear face shields in addition to face coverings.]
- Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
- Staggering workstations where possible to achieve six feet of separation, or alternatively some spacing combined with increased cleaning and sanitization;
- Limiting the number of employees in breakrooms;
- Prohibiting handshaking and other unnecessary person-to-person contact;
- Enforcing social distancing for non-cohabitating persons on business property;
- Increasing physical space between workers and patrons, using physical barriers (e.g. Plexiglas) at registers where practicable;
- Discarding all out-of-date food;
- Discontinuing buffets and salad bars; [Ed. Note: The May 12 Executive Order adds “unless the salad bar or buffet is being used for cafeteria style service where a worker is responsible for serving the patron, handling the utensils, and ensuring proper distancing in lines.”]
- Stocking “grab and go” coolers only as needed;
- Ensuring up-to-date Food Safety Manager certifications and refresher training for all workers;
- Cleaning and sanitizing entire facility prior to reopening to the public and continuing to do so with a focus on high employee or patron contact areas;
- Cleaning and sanitizing condiments, point of sale devices, check presenters, self-service areas, tabletops, and commonly touched surfaces as well as disposing of single-serve items between each patron;
- Using rolled silverware and eliminating table presets;
- Removing self-serve options whenever possible;
- Using paper single-use disposable menus where possible, or alternatively, using non-touch menus or cleaning multi-use menus frequently;
- Frequent cleaning and sanitizing restrooms and restocking soap and paper towels;
- Implementing procedures to increase cleaning and sanitizing of employee-only areas;
- Redesigning dining areas to ensure six feet of separation between patrons, using physical barriers on booth seating if available;
- Limiting patron party size to no more than six persons seated together;
- Considering reservation-only or call ahead-only seating to facilitate these requirements and use technological solutions such as mobile ordering and contactless payment options where possible;
- Reminding supplies and vendors of these requirements, particularly the distancing requirements;
- Posting signage at entrances to facility that no patron with a fever or COVID-19 symptoms is allowed onsite;
- Providing hand sanitizer for use by patrons, using contactless stations where possible;
- Prohibiting patrons to congregate in waiting areas or bar areas and redesigning workflow to ensure patron separation prior to seating using floor markings, outdoor distancing, or waiting in cars where possible;
- Utilize separate entrances and exits for patrons;
- Establish and advertise paths to restrooms for patrons and staff to minimize congregating and maximize space between patrons;
- Prioritize take-out and curbside services where possible; and
- Forbidding the use of restaurant and dining room playgrounds.
Of course many of these “guidelines” are less than precise and will require employers to use their best judgment. For example, employers are directed to “limit the number of employees in breakrooms,” but the guideline does not say how many employees should be in a breakroom at a given time. Understandably, restaurant owners want guidelines, that if followed, may insulate them from frivolous legal claims. As a starting point, restaurant owners may want to use social media to gauge regular customers’ concerns and interests in deciding whether to resume dine-in service. Some of the requirements are applicable “if practicable,” and restaurants may have to investigate alternative solutions. The order’s emphasis on reservations to facilitate distancing and strategies to avoid diners having to wait are valuable
The order also imposes additional requirements on retail and wholesale grocery stores. These include requirements to:
- Limit the number of patrons onsite to 50% of the facility’s fire capacity occupancy or eight patrons per 1,000 square feet;
- Encourage patrons to use hand sanitizer upon entering and provide sanitizer in various locations within the premises;
- Encourage non-cash payments;
- Sanitize entrance and exit doors at least three times per day;
- Encourage workers to report safety and health concerns to the employer; and
- Install protective screen or other mitigation measures where worker-patron interactions are likely.
The order also requires additional measures to be taken, and in lieu of another long list of requirements, it encourages retail and wholesale grocery stores to implement various measures that restaurants are required to implement as noted above and other practices such as schedule times where vulnerable populations can shop and engaging third-party cleaning services.
Gyms, Barbershops, Salons, Theaters, Bowling Alleys
In addition to 21 requirements for all non-Critical Infrastructure, each successive group is directed to follow additional rules. While not as detailed, the order lists requirements that gyms and fitness centers must implement, including some listed above, with an obvious focus on distance between patrons, the cessation of group classes, childcare services, and opportunities for gym-based group activities. It also requires these businesses to implement increased cleaning and sanitization protocols, while screening patrons at the entrance to the gym or fitness center and refuse entry to sick patrons or those exhibiting COVID-19 symptoms.
[Ed. Note: The May 12 Executive Order exempts gyms that have no employees present at the gym from the requirement to screen patrons for COVID-19 symptoms. It further allows for the resumption of group classes (with a 10 feet distance between participants) and facility childcare.]
Moreover, given the past criticism of the previous order allowing gyms and tattoo shops to open, the order also requires barber shops, salons, massage therapists, tanning salons, and nail salons to (1) only provide services by appointment-only; (2) only allow one patron per service-provider in the facility at a time (one parent for their child is excepted); (3) stagger workstations; (4) stagger work schedules; (5) increase sanitization and cleaning between patrons; and (6) provide PPE and training for all employees.
Movie theaters also got their own list of requirements, namely: (1) keeping seating of patrons six feet apart and enforcing with ushers in each auditorium; (2) increased sanitization and cleaning; (3) floor markings at concessions to enforce social distancing protocols; (4) food services areas must adhere to the list of requirements for restaurants and social clubs listed above; (5) party rooms must not be used for Gatherings; and (6) playgrounds and arcades within theaters must remain closed. [Ed. Note: The May 12 Executive Order allows arcades within movie theaters and bowling alleys to reopen.]
Bowling alleys are also covered in the order, and they are required to implement various safety measures, many of which are covered above, especially in the requirements for theaters. Notably, any food establishment in a bowling alley must adhere to the list of requirements for restaurants and social clubs listed above, and bowling balls and shoes will now be distributed to patrons by staff after a thorough sanitizing.
The Department of Driver Services
The order also addresses certain governmental issues, but the one most likely to affect the public appears to be a temporary suspension of the requirement that applicants for a Georgia driver’s license complete a comprehensive on-the-road driving test through the end of the public health state of emergency in Georgia.
[Ed. Note: Another new Executive Order makes clear this section regarding Drivers Services is now expired. Notably, those lucky few who obtained a license without an on-the-road test must now complete that practical requirement by September 30, 2020. More notable perhaps is a provision in the order that the examiner may observe this on-the-road test by riding along or “by remote means.”]
In terms of healthcare employers, the order mainly addresses recommendations or requirements for medical sectors that had elected not to operate to conserve medical resources during the height of the pandemic or ceased elective procedures. Given the governor’s prior order encouraging these businesses to begin operating again, the order requires that healthcare providers adhere to the recommendations for businesses operating as critical infrastructure.
It also requires dental practices to adhere to adhere to the American Dental Association’s interim guidance on minimizing risk of COVID-19 transmission, and its mask and face shield guidance. Opticians should adhere to CDC guidance on office disinfections. Ambulatory surgical centers should take steps to screen patients prior to the scheduled procedure, require staff to self-monitor for COVID-19 symptoms daily, utilize PPE per CDC guidance, utilize spacing of patients in waiting rooms, use heightened disinfectant techniques, prioritize procedures as medically appropriate, provide COVID-19 testing where feasible, and use patient’s COVID-19 status in determining whether to continue with a scheduled procedure.
What Should Employers Do?
As you begin the process of reopening, you should familiarize yourself with our alert: 5 Steps To Reopen Your Workplace, According To CDC’s Latest Guidance. You should also keep handy our 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens in the event you learn of a positive case at your workplace. For a more thorough analysis of the many issues you may encounter from a labor and employment perspective, we recommend you review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.
Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our Atlanta office, or any member of our Post-Pandemic Strategy Group Roster.
This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.