Central Issues for Employers as They Navigate Re-Opening Orders in St. Louis City and CountyMay 13, 2020
Effective May 18, 2020, most businesses in the City and County of St. Louis will ostensibly be permitted to re-open subject to their compliance with the respective Orders issued by the City and County on May 11, 2020 and May 8, 2020. The United States District Court for the Eastern District of Missouri in SH3 Health Consulting, LLC v. St. Louis County Executive Dr. Sam Page recently denied a challenge to the constitutionality of such local Orders. It noted that, "[d]uring a public health crisis, a court has no authority to determine the most effective measures for protecting the public."
In any case, these Orders – and certain related industry-specific recommended “operating protocols” published on May 11, 2020 by the City and County – raise a number of practical questions that each employer must confront as it plans to re-open or continue its operations after May 18, 2020. For example, each employer must analyze and understand: (i) whether it can continue, or should resume, business operations on or after May 18, 2020; (ii) what restrictions will apply to its workplace and business operations as of May 18, 2020; and (iii) if it decides to continue or re-open its business operations thereafter, what will be the applicable “standard of care” in its workplace.
This alert discusses some of the central questions and practical issues presented by these Orders. These are many of the same questions, and the same basic framework, that we addressed in our prior Client Alert regarding Reopening During COVID-19.
St. Louis County Order
As has been widely reported elsewhere, on May 8, 2020, the St. Louis County Department of Public Health issued an Order that permits most businesses to “re-open” on May 18 and sets standards for open businesses to minimize continued COVID-19 related health risks.
Under this Order, all businesses – including those “essential” businesses that have remained open throughout the pandemic – must, among other things:
- frequently disinfect all high touch surfaces;
- provide breaks so employees and volunteers can wash their hands;
- train their employees and volunteers about disinfection and social distancing;
- provide face coverings or materials to make them and require their employees and volunteers to wear them while at work (unless they are working alone in an enclosed area or have a medical reason not to);
- conduct daily screening of employees and volunteers for symptoms of COVID-19;
- limit gatherings to 10 people in a single space or room (whether indoors or outdoors);
- install physical barriers in any place where there is prolonged contact between a customer and an employee;
- install clear markings with tape or signage in areas prone to congregation or lines that show six feet distancing; and
- establish preferred hours of operation, wherever possible, for high-risk individuals.
However, the Order does not specify further how each employer must carry out the above mandates. For instance, it does not specify what constitutes reasonable breaks, what training is specifically to be provided, what an “enclosed area” means, or distinguish between unique facts and circumstances applicable to a particular business.
Similarly, while St. Louis County’s Order requires all businesses to conduct daily screenings for symptoms of COVID-19, it does not specify what "daily screening" means or entails, whether such screening might be out-sourced, or whether self-certifications of employees and volunteers as to their health and well-being on a daily basis will suffice. The Order also does not address whether face coverings must be worn by workers who perform work outside, such as at a construction site, and where they may not be public-facing or have minimal contact with others. In the end, it seems clear that business owners and other employers will have to use their best judgment to comply with the law as best they can under the circumstances.
Additional Industry-Specific Guidance
On May 11, 2020, St. Louis County also posted on its website eight industry-specific “operating protocols” that raise additional questions about what St. Louis County businesses may be required to do versus what they can or should do. First, it is unclear as to how these operating protocols relate to St. Louis County’s Order as the Order does not reference them. They seem to be recommendations for best practices, and these will presumably depend on the workforce or workplace. That said, however, the “recommendations” appear in some instances to go beyond mere guidance, and beyond the parameters of the Order itself. For example, all of the County’s operating protocols state that employers “must conduct health checks (e.g. temperature and symptom screening) of employees at the start of each shift” but then suggest the screening “should include” a temperature check “if it can be performed with a touchless thermometer”. The protocols go on to state that anyone answering yes to any of the standard screening questions, or who has a temperature of 100.4° or above, “must not be allowed to enter the workplace.” The County’s Order, however, does not contain any of these requirements or suggestions. So, it is at the very least unclear what the “daily screening” must entail. Again, it seems employers must use their best efforts to comply in good faith as best they can.
Notably, neither St. Louis County’s Order nor the recommended operating protocols appear to differentiate between “essential businesses” that have been operating since March 23, 2020 and non-essential businesses permitted to re-open on May 18, 2020.
City of St. Louis Order
On May 11, 2020, the City of St. Louis’ Health Commissioner published Order No. 8, allowing certain businesses to continue operating conditioned on compliance with general and business-specific operating standards and guidance included in, and attached to, the Order, and also allowing certain other businesses to re-open conditioned on compliance. Like the County’s Order, the City’s Order is effective on May 18, 2020.
Unlike St. Louis County, the City’s Order incorporates the various operating protocols discussed above (e.g., business office operating protocol, commercial office building protocol, hotel operating protocol, construction, manufacturing, repair protocol, retail operating protocol, restaurant operating protocol, personal services operating protocol, and transportation protocol) along with “Phase I Reopening Standards and Guidance.” Also, unlike St. Louis County's Order, the City’s Order incorporates an Employee Health Screening Form, which expressly states that, if an employee’s current temperature is greater than 100.4°, they “don’t report to work.” This suggests that the employee is to take his or her own temperature. While the City’s Phase I General Guidance for Business requires businesses to establish daily protocols to evaluate employee health, it characterizes the Employee Health Screening Form as a “sample,” thus suggesting that businesses operating in the City of St. Louis are free to use something else.
Like the County’s Order, the City’s Order and operating protocols do not distinguish between “essential businesses” that have been operating in the City of St. Louis under the prior health commissioner’s orders and those certain businesses that are allowed to re-open on May 18, 2020. Rather, the City’s Order seems to indicate that the guidance set forth in the various operating protocols will apply to essential and non-essential businesses alike, depending only upon the specific business category in which a business may fall.
While these Orders herald a change in policy, they certainly do not portend a return to business as usual anytime soon. In the short term, essential businesses that have been operating since early March likely will need to re-evaluate their operations and make adjustments in yet another phase of the “new normal,” and non-essential businesses looking to re-open will need to think carefully about whether they can comply with the requirements of these Orders.
We are ready to help you work through these challenging issues and to identify options and best paths forward that are unique to your particular business needs and goals, consistent with evolving law.