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Back to Work: Planning for COVID-19 Impacts in the U.S. Through 2021

September 2, 2020

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The United States had hoped that industries (and life in general) would be “back to normal” by now after being impacted by COVID-19.  Society has endured this global pandemic for over six months, and while there have been improvements and efforts to allow certain businesses to reopen, there is no clear end in sight.

Current Events

Recent trends confirm that the impacts from COVID-19 will continue.  While death rates in states like New York[1] and Arizona[2] are decreasing, states like Georgia[3] and Florida[4] are seeing climbing infection rates.  Local hotspots like Danbury, Connecticut, have emerged,[5] and eight states (thus far) have had spikes in cases caused by the large Sturgis motorcycle rally in South Dakota.[6]  In response, some states and local governments are implementing controls.  For example, Illinois is taking some preventative safety measures,[7] and Oahu, Hawaii issued a two-week lockdown to address increasing infection rates.[8] 

The important

Proposition 65 – OEHHA Proposes Safe Harbor Concentrations and Blanket Protections for Exposures to Acrylamide and Other Listed Chemicals in Cooked or Heat Processed Foods

Acrylamide in food products has been one of the most significant drivers for recent Proposition 65 enforcement actions, frustrating many in the food industry, particularly because acrylamide is not added to those products. Acrylamide forms naturally when starches are heated during the cooking or baking process. Out of the 1,923 60-day notices issued this year as of August 5th, 202 were based on allegations of acrylamide exposure. After years of costly litigation and industry consternation, it appears that OEHHA has offered a possible solution to provide clarity, and potentially reduce the risk of enforcement actions for the presence of acrylamide, furfuryl alcohol, and other listed chemicals formed during the cooking process.

On August 4, 2020, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency that implements Proposition 65 and has the authority to promulgate and amend regulations, released a proposed regulation providing that intake of listed chemicals formed by

States Use Re-Closures, Pause Orders, and Travel Restrictions to Combat Increased COVID-19 Case Counts

The United States has seen an 82% increase in the number of new COVID-19 cases since two weeks ago, and has set daily new case records four times in the last week.  The bulk of the increased case counts are coming from states in the South and West, including Arizona, California, Florida, Georgia, and Texas, along with others.  The increased case counts come at a time when many of those states are still in the middle of their reopening plans, and have raised questions about whether industries will continue opening, or whether the increased case counts will lead to re-closures.

While every state’s approach is different, the following trends have developed over the last week.

1. Business Re-Closures

Several states have recently decided to re-close, or significantly restrict certain businesses.

State Steps Taken Arizona Closed fitness centers, nightclubs, water parks, movie theaters, tubing rentals, and bars for 30 days (June

Boise, Idaho Is First In The Nation To Reintroduce COVID-19 Business Closures

Ada County’s New Restrictions

The move back to Phase III triggers the closure of nightclubs, bars, and large venues.  Some bar owners had already begun implementing temperature screenings, plastic barriers between patrons and bartenders, and constant cleaning of handrails and doorknobs, but the Central District Health division of the Idaho District Board of Health still determined that closures are necessary.  Gatherings of more than 50 people are also no longer allowed.  In addition, out of state visitors are required to self-quarantine for 14 days.

Why is the relevant for businesses outside of Ada County?

It is the first example of a jurisdiction re-closing businesses, and a sign that a trend in that direction may be coming, particularly in the bar and nightclub industries.  The move also signals that infection rates may be the main driver for health officials who are making those closure decisions, and provides at least one data

U.S. Reopening Information

U.S. Reopening Information

June 3, 2020

Authored by: Tom Lee and John Kindschuh

The United States has seen a wave of unprecedented restrictions on the way we do business and conduct our daily lives, designed to control the risks posed by COVID-19. These changes have caused uncertainty and disruption in the business community, as well as up and down supply chains. States are now issuing orders and guidance on the path back to work, and towards a new normal.

We have prepared the map and checklist below as a general reference resource to help companies get a sense for how their industry is being regulated in each of the 50 states. The information below is current as of the date listed on the map and chart, but is intended as the first, rather than last, step in a business’ effort to decide how and when to reopen a facility. The map and chart only reflect statewide orders, and there may be more restrictive local orders. Even those

Using Third Party Cleaners in the US Amidst the COVID-19 Pandemic: What Risks Are Associated and What Your Company Needs to Consider

May 19, 2020

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Employers in the United States (and around the world) are trying to determine how to operate their businesses safely due to the health risks posed by COVID-19. Employers have many questions surrounding how to implement the best cleaning and sanitization practices, and what happens if an employee or invitee transmits COVID-19 therein or believes they contracted the illness at work or while patronizing the business. As not all employers can clean their workspaces themselves, many employers are asking what risks are associated with hiring a third-party cleaning service or independent contractor to clean their facilities. For a detailed discussion on employer liability generally in the midst of COVID-19 please click here. Below provides an assessment of the specific risks associated with hiring a third-party cleaning service provider.

What standard of care do I owe my employees or other visitors to the property?

Employers have a duty to their employees, customers,

What Do I Do if a Person Suspected or Confirmed to Have COVID-19 Has Been at My U.S. Facility?

If you have a confirmed or suspected COVID-19 case tied to your premises, what you should do depends on whether the person is an employee or an invitee, such as a customer or business guest.  While the rules are similar, there are some distinctions.

Invitees

If the person is an invitee, follow the evolving guidelines published online by the CDC and state and local health authorities and determine whether the applicable state or local health authorities require a non-employee case to be reported.

Employees

If the person is an employee, also follow the evolving CDC and state and local health authority guidance.  The CDC guidance discusses at length measures businesses should take to reduce the transmission of the virus, to maintain a healthy business operation, and to maintain a healthy work environment.

Moreover, as an employer, you must also comply with OSHA guidance.  There is a significant question as to

U.S. Federal Court Declines to Decide COVID-19 Workplace Safety Suit

A federal court recently dismissed a suit brought by meat processing workers that asked the court to force the plant owner to comply with workplace safety guidance issued by the Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) related to COVID-19.

Important Takeaways For Employers:

  • This is one of the first court decisions involving workplace safety and COVID-19. It suggests the courts may rely on the doctrine of primary jurisdiction and similar doctrines to avoid deciding cases involving COVID-19 safety issues and instead shift the decision-making authority to the agencies that issue or enforce the workplace and public health and safety laws.
    • The defendants successfully argued that the court should dismiss the Complaint on the doctrine of primary jurisdiction.  Based on this doctrine, the court decided that OSHA, not the court, should decide the matter.
    • The court declined to address the issue in part

Back to Work: Governor Pritzker Announces the Restore Illinois Reopening Plan

On Tuesday, May 5, Governor J.B. Pritzker announced a reopening plan for the state of Illinois. The Restore Illinois plan is divided into five phases, with the first two phases reflecting the restrictions imposed by the stay-at-home orders and the three subsequent phases pertaining to gradual reopening. Gov. Pritzker noted that the state is currently in Phase Two, which corresponds to the stay-at-home order modification that was issued on April 30. Because the stay-at-home order is set to expire on May 29, the earliest a transition to Phase Three could take place is May 30 unless the order is modified further. Before moving on to each subsequent phase, regions must meet certain health care metrics focused on case numbers, testing capacity, and contact tracing capacity.

The following chart provides a summary of each of the five phases:

Importantly, the Restore Illinois

U.S. COVID-19: California Announces Phased-In Reopening, Starting With Curbside Pickup

California Gov. Gavin Newsom announced on Monday that certain low-risk retail businesses will be allowed to reopen on a limited basis if they meet state guidelines and conditions to be announced on Thursday, including by allowing curbside pickup as early as this Friday.

Newsom said shops that sell items such as clothing, books, music, toys and sporting goods, as well as florists, are as among those who will be allowed to reopen on a limited basis if they meet the state guidelines.  Associated manufacturers that support the retail industry would also be allowed to begin production.

Whether a particular retail location can reopen, and under what conditions, also depends on the county and city where it’s located.  Six Bay Area counties announced last week that their shutdown orders will continue through the end of May: These include Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and the City

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