Podcast on COVID-19 Control Plans with Mirick O’Connell, Esq., Boston-Worcester, MA June 2, 2020

Listen to the recording

  1. In light of the threat of COVID-19 disease, what steps should companies undertake in getting ready to re-occupy their buildings safely? A. First, a “deep cleaning” is recommended, using physical scrubbing contact and disinfection of high-contact surfaces as well as any fogging, that a professional cleaner might suggest. In certain situations, for example a hospital, medical or research lab, aged care facility, or hotel used to house COVID-19 patients, a Verification of cleaning may be appropriate. This Verification is not usually provided by professional cleaners but instead by a third-party infectious diseases consultant, since it involves use of enzyme detection field instruments usually in combination with wipe samples sent to a specialty microbiological laboratory. The latter provides a pass/fail determination for the SARS CoV-2 virus which causes the COVID-19 disease. Secondly, a COVID-19 Control Plan is needed by “all sectors and industries” which must meet Governor Baker’s May 18, 2020 mandatory standards for safe office reopening. These standards reflect CDC and US EPA guidelines but take them quite a bit further.
  2. Are all business and other sectors allowed to be open at present? Q. No, Phase 1 of COM’s four phase program allows most office-type businesses to open as of May 25 (June 1 in the City of Boston), but not restaurants, who may not be eligible to open until June 8 at the earliest, and it could be later as of this writing. Even when restaurants can open, a 25% capacity restriction will likely apply to them. By the way, in central Massachusetts, most towns and cities, notably the City of Worcester, do not have their own additional standards, but follow the COM’s lead.
  3. What are the overall requirements for a Commonwealth of Massachusetts (COM) COVID-19 Control Plan? A. The COM defined different “sectors” with individual standards, although many similarities exist for each sector. The COM’s standards pertinent to the “Business Sector-Specific”, are as follows, listed in four categories, and followed by “Recommended Best Practices”  for two of the categories: Social Distancing; Hygiene Protocols; Staffing and Operations; and Cleaning and Disinfecting. A self-implementing Plan is prepared and kept on the premises, which although not filed with any state agency, must be completed and signed by an authorized representative, along with an Attestation Poster also signed and posted in prominent location. Note that even with a Plan, only 25% of the staff can be present at any one time, in the current Phase I of the four COM phases.
  4. We’ve heard they are some pretty detailed requirements in a Control Plan besides those four broad categories. Could you give examples? A. Yes, besides describing protocols for the types of things we have all heard from the media, such as keeping a 6 foot distance and face covering, an employer must address the following in a Control Plan: prepare an Isolation, Contact Tracing, and Communication Plan, describing how to deal with positive virus cases or contacts;  a return-to-work plan; define and maintain cleaning protocols specific to the business, and keep cleaning logs; when an active employee is diagnosed with COVID19, clean and disinfect the impacted workspace must be performed; close or reconfigure worker common spaces and high density areas, and redesign work stations as needed, with physical partitions separating workstations that cannot be spaced out–partitions must be taller than a standing worker; regularly evaluate all workspaces to ensure compliance with all Federal, State and Local Guidelines; and provide training to each worker of all the Plan elements.
  5. It sounds like a fair amount of effort is involved in preparing such a Plan. How long does one typically take to prepare? A. For those preparing a Plan for the first time, expect 40 or more hours for a basic Plan, especially if staff exceeds 20 people or involve multiple floors. A standard Plan exceeds 15 pages and can often exceed 30 pages. Depending upon the number of employees needing the training, and the length of the logistics involved, the effort can easily be twice that level, or more.
  6. Are you seeing other elements of a Plan including employment considerations, including perhaps employee screening requirements? A. Yes, we are seeing, and recommending, that a Plan contain a Policy Statement and a section on employment policies, with each employee required to read and sign the Plan. A Pre-Entry Employee Questionnaire is also recommended, which self-screens employees. Daily temperature checks are mandated by some employers, such as BJs locally, and some buildings require this screening prior to entry. Other owners are requiring employees to text daily their temperature readings conducted at home, prior to being allowed to go to work. Note that privacy considerations formerly considered standard are unclear at present.
  7. Do Plans vary between types of building occupants, say tenant and landlord? A. Yes, and in fact there are tensions occurring between tenants and landlords as they sort out how COVID-19 compliance will occur, and who will pay for that compliance. For example, air filtration recommendations by the U.S. American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) just issued in mid-April suggest much more powerful air filters which have effects on HVAC performance and cost. Also, many landlords are charging tenants for both the deep cleaning and cleaning upgrades. Landlords in larger office and industrial buildings, are having to physically modify their facilities and re-train security and custodial staff, and prepare policies and posters for lobbies, elevators, and common areas.  And landlords and tenants are each asking the other, usually in writing, how are they achieving compliance?
  8. What if any penalties exist to non-compliance? A. This is still unknown, since the requirements are essentially brand new, but at least one local town, Westborough, is conducting random, unannounced checks by the Building Inspector or Board of Health agent, seeking to verify that a COVID-19 Control Plan is in place and properly implemented. Since COM requires their standards to be in place prior to reopening a business, it seems non-compliance would be a violation of state law and have some type of consequences, plus associated bad publicity. Employees in general are already skittish enough about returning safely to work, and a proper Plan ideally prepared by an expert will go a long way to providing reassurance.