On April 16, the White House and the CDC released guidelines for a phased reopening of the U.S. economy. Most states and localities have been under “stay at home” or “shelter in place” orders since mid-March, and many jurisdictions are now considering how and when to lift these restrictions. The federal guidelines provide a broad blueprint for what a phased reopening could look like.

The guidelines anticipate that states and regions will move at different speeds, and that the recommendations will be tailored to each state or region’s individual circumstances. Several states, including New York, California, Ohio, Georgia, and Texas, have already announced their own plans for reopening.

Phased Reopening

The federal guidelines suggest that states implement the following phased approach to reopening:

The guidelines note that in all phases of reopening, individuals should continue to practice

Shelter-in-place and social distancing have become the new normal as we try to combat the spread of the coronavirus-19/COVID-19 in the U.S.  Many state governments have implemented stay-home or shelter-in-place orders to try to “flatten the curve” and protect citizens’ safety.

But as time passes, businesses are also concerned.  Under many such executive orders, a business that is not deemed “essential” or “life-sustaining” may be required to stop in-person operations, and we’re starting to see an uptick in local enforcement, including cease and desist letters and revocation of occupancy permits.   

Some shuttered businesses have started to bring their claims to court.  Business plaintiffs have filed cases in at least 8 states to date, challenging government action on constitutional grounds. **

Below is a summary of the prominent claims and factual allegations featured in these complaints.  Please note that because these cases were filed just in this past two weeks, the ultimate viability of

California Governor Gavin Newsom was the first U.S. governor to impose a statewide stay at home order. He has now reported that his aggressive action appears to have flattened the curve of COVID-19 cases in the state, and many are now looking to Newsom for guidance on easing restrictions and getting people back to work.

Last week Newsom laid out a framework for lifting California’s stay at home order. He said the state must first be able to:

• Closely monitor and track potential cases of COVID-19,
• Prevent infection of high-risk people,
• Increase surge capacity at hospitals,
• Provide enough personal protective equipment to protect first responders,
• Develop therapeutics to help treat patients,
• Ensure physical distance at schools, businesses and child care facilities, and
• Develop guidelines for when to ask Californians to stay home again if the governor modifies the stay at home order and the virus surges.

Newsom has

Recent state and federal developments are a reminder that the COVID-19 landscape is continually changing and demonstrate that businesses must remain alert and nimble as they address rapidly evolving mandates from both the federal and state sectors in the COVID-19 environment. Specifically, in the last week: (1) the Centers for Disease Control (“CDC”) issued interim guidance1 for critical infrastructure workers; and (2) an April 8, 2020 the Governor of New Jersey signed a new Executive Order2 expanding the state’s Stay-at-Home restrictions.

Businesses that continue to operate under Stay-at-Home orders can expect evolving requirements intended to keep workplaces safe. The New Jersey order is an example of just one state with recent changes; however, it is not alone. Many states are modifying their orders or issuing new guidance as the nation continues to learn more about COVID-19 and as the business community tries to understand and adjust to the orders. One of the

Key Points

• HHS Declaration Provides Immunity: During a public health emergency, the Secretary of HHS can issue a Declaration providing broad tort immunity for “Covered Persons” engaging in “Recommended Activities” with “Covered Countermeasures.”
• Covered Persons: The entities covered include, among others, manufacturers and distributors.
• Recommended Activities: Under the Declaration, the activities covered include “the manufacture, testing, development, distribution, administration, and use of the Covered Countermeasures.”
• Covered Countermeasures: This will include diagnostics, treatment, vaccines and other prevention modalities, masks and other medical equipment that are FDA-approved or cleared, licensed under the PHS Act, or authorized for emergency use by the FDA. Note that NIOSH-approved masks are now included.
• Willful Misconduct: This is not protected by the Act.
• FDA Loosens EUA Requirements: Given the shortage of materials, especially masks, the FDA has indicated that it wants to help applicants through their EUA process, even if they are new to medical device manufacturing. In other words, if
  

As shelter-in-place orders began to sweep across the United States, many store shelves emptied and, in some instances, prices for certain products skyrocketed, including products that are essential to everyday living and staying safe during the COVID-19 crisis.

As a result, one of the many hot-button business, and corresponding legal, issues to arise out of the COVID-19 crisis is price gouging. Price gouging occurs when sellers raise their prices for goods and services to take advantage of the consequent increased demand for those items, often during emergencies. Price gouging has ensued following large scale natural disasters such as hurricanes or wildfires, where sellers have drastically elevated prices for basic necessities, safety equipment and medical supplies that were in high demand following those catastrophic events. As many consumers, businesses and state attorneys general are aware, allegations of price gouging for those same items have been prevalent in the midst of the

Effective March 21, 2020, at 5 pm, Illinois joined six other States in implementing a Stay at Home Order to address the COVID-19 outbreak. The Order states that all businesses that are not Essential Businesses and Operations must cease all activities except for Minimum Basic Operations. This alert provides

Recommendations on immediate steps your business can take to operate under the Order and still protect public health.

• Determine whether some or all business operations qualify as Essential Businesses and Operations. If so, document the basis for the exemption and make sure that you inform your employees that your business will stay open. See summary of the Essential Business and Operation below.
• If you do not fall within Essential Businesses and Operations, make sure that your plan to keep your business going is consistent with Minimum Basic Operations: (A) it is limited to necessary activity to maintain inventory, preserve physical condition of facilities and
  

Each situation is unique and we can help you craft a warning that fits your individual factual scenario.  But here are a few questions to consider first.

• Prior to learning about the infected person’s presence at your premises, what were you doing to limit the spread of the virus?
• What parts of the premises were visited by the infected person and how long was he or she at the premises (do you know what he or she touched, if anything)?
• How soon after the infected person visited the premises did you discover they were positive for COVID-19?
• What steps did you take upon learning of this information and when did you take these steps?

With this information, you can draft a warning that addresses these and other salient points.  Here is a hypothetical example.

• You have been implementing the CDC and local guidance for businesses as it evolves.

On March 16, 2020, seven Bay Area counties issued shelter in place orders that run from midnight on March 17th through April 7th, with the possibility that the period will be extended or shortened as the situation develops. This alert provides guidance on movement that is still allowed under the order and recommendations on immediate steps your business can take:

What movement do the orders still allow?

While everyone in the seven counties1 is “ordered to shelter at their place of residence,” people can leave their residences for:

• Essential Activities – These include shopping for food, medical supplies, and household supplies; seeking medical care; engaging in outdoor activities including walking, hiking, or running; performing work at an Essential Business, or caring for family members or pets in another household.
• Work performing Essential Government Functions – Each government agency will determine what functions are essential, and identify appropriate employees and
  

We are posting a series of answers to Frequently Asked Questions and practical advice to consider in the era of COVID-19. These posts are not intended to cover all employee issues or healthcare settings recommendations, but rather are focused on dealing with premises liability involving invitees. Other resources for handling employees include: https://www.osha.gov/SLTC/covid-19/l; https://www.osha.gov/SLTC/covid-19/; https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html. Please review other posts related to COVID-19 published on this blog for additional information. If you have questions specific to your company’s individualized situation, contact Susan Brice (susan.brice@bclplaw.com) or Tom Lee (tom.lee@bclplaw.com). For any employment related questions, please contact the BCLP employment lawyer with whom you work or Lily Kurland (lily.kurland@bclplaw.com), who can provide you with information about guidelines and protocols they have developed to assist employers with these issues.

Six Steps You Can Take to Mitigate Risks and Liability:

1. Follow the Guidelines: Follow CDC