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WHAT UTAH EMPLOYERS NEED TO KNOW ABOUT GOVERNOR HERBERT’S ORDER MOVING THE COVID-19 PUBLIC HEALTH RISK STATUS FROM RED TO ORANGE
May 05, 2020


All information in this COVID-19 Response Resource issue is effective as of May 5, 2020.

On April 29, 2020, the Governor of Utah issued an order moving the state COVID-19 public health risk status from “Red” (high risk) to “Orange” (moderate risk). That same day, the Utah Department of Health simultaneously released version 4 of its Phased Guidelines for the General Public and Businesses to Maximize Public Health and Economic Reactivation (Phased Guidelines). The Governor’s Order is effective from 12:01a.m., Friday, May 1, 2020, through 11:59 p.m., Friday, May 15, 2020, “unless otherwise lawfully modified, amended, rescinded or superseded.”[1]

The Order requires individuals and businesses in Utah to comply with the Orange provisions of the Phased Guidelines.[2]  Specific to employers and employees, the Phased Guidelines provide that:

(1) Employers must make “every possible effort” to enable employees and volunteers to work remotely. Where remote work is not possible, “workplaces must comply with distancing and hygiene guidelines;”

(2) Employers must “take extreme precautions,” including “eliminating unnecessary travel and cancelling or postponing in-person meetings, conferences, workshops and training sessions and requiring employees to self-quarantine when returning from high-risk areas;”[3]

(3) Employers must check employees for symptoms of COVID-19 using a checklist or verbal symptom checks. “Employers must not allow any individuals under isolation or quarantine to come to work at any time unless authorized by [the Utah Local Health District] (LHD);”

(4) Employers must provide accommodations to high-risk employees;

(5) Employers and employees must “follow strict hygiene standards,” including regularly cleaning and disinfecting “high-touch surfaces (e.g. door handles, buttons/switches, countertops, handrails, shopping carts, check-out counters, restroom surfaces)” and following “any other standards promulgated by the Centers for Disease Control and Prevention (CDC), the Utah Department of Health, and local health department;”

(6) “Where distancing and hygiene guidelines cannot be followed in full,” businesses must consider “whether that activity needs to continue for the business to operate;

(7) In-person interactions, including with customers, must be minimized and allow social distancing guidelines to be maintained (e.g. by designing spaces to maintain a six-foot distance between individuals and using drive-throughs or installing partitions); and

(8) Employers must “evaluate workforce strategy, concerns, and enact strategies to minimize economic impact.”[4]

However, the Order contains a significant departure from the Phased Guidelines in requiring individuals “acting in the capacity as an employee of a business” and those “in a healthcare setting” to use a mask or face covering.[5] All members of the general public are also strongly urged to wear face masks, but it is not required under the Order.[6] Notably, employers must “ensure that face coverings are available” to employees.[7] As a result, the face coverings should be treated as personal protective equipment (PPE) under OSHA’s standards.[8] 

The Order also lists specific requirements for certain industries and service providers, including restaurants, food service establishments, bars, food trucks and convenience stores; retail stores (including grocery stores and pharmacies); hospitality and tourism providers; event, cultural arts and entertainment providers; personal service providers (including barbers, cosmetologists, body artists and nail technicians); home repair providers; gym and fitness centers (including indoor recreation centers and yoga and studios); construction providers and manufacturers; day care providers; hospitals and surgical facilities; and non-hospital medical providers, including dentists.[9] For instance, restaurants should stagger employee workstations so employees can maintain a six-foot distance and not face each other.[10] In addition, employees must sanitize hands between handling payment options and food containers, and employers should provide PPE such as face coverings, hair nets, and gloves.[11] For the retail industry, both employees and customers should wear face coverings, and the maximum number of patrons allowed in the place of business “must be such that a 6-foot distance between patrons and employees can be easily maintained (1 person per 100 square feet).”[12] For the personal services industry, both the service provider and the client should wear face coverings, and customers must be checked for symptoms of COVID-19 before services can be rendered.[13]

To assist employers with protecting employees who are high-risk for COVID-19 as businesses begin operating under the mandates of the Order, the Utah Labor Commission issued guidance for developing safety measures in the workplace. High-risk individuals include those who: are 65 or older; live in a nursing home or long-term care facility; have chronic lung disease or moderate to severe asthma; have serious heart conditions; are immunocompromised; are severely obese or have underlying medical conditions such as diabetes or liver disease; or are pregnant.[14]

The Labor Commission emphasizes that, pursuant to the “Hierarchy of Controls” from the National Institute for Occupational Safety and Health, “the best possible protection for all, including high-risk individuals, is to eliminate the hazard.”[15]  With COVID-19, however, the hazard is very difficult to eliminate entirely. As a result, “[t]he best protection for high-risk individuals may be to exclude them from exposure to the hazard.”[16] “When such measures are not feasible,” the Labor Commission recommends “implementing all other methods in the hierarchy of controls,” which include “isolating employees from the hazard, modifying the way employees work, and protecting employees with PPE.”[17]

The Labor Commission issued the following non-exhaustive list of general safeguards for employers to implement for all employees:

“(1) Protect high-risk employees, ideally keeping them working from home to the extent feasible;

(2) All individuals should wear masks or cloth face coverings in public spaces to help control the spread of COVID-19. Wearing a cloth face covering is intended to help protect others in the event the wearer is an asymptomatic or pre-symptomatic carrier and spreader of COVID-19;

(3) Maintain physical distancing between co-workers and customers (ideally 6+ feet);

(4) Encourage the use of the Healthy Together app;

(5) Wear disposable gloves when interacting with the public, taking payments, using shared workspace or equipment, or any other time the employer feels it is necessary;

(6) Consider screening of both symptomatic and asymptomatic workers, including temperature screening and symptom monitoring;

(7) Where possible, use floor markings spaced six feet apart or physical barriers such as plexiglass to reduce exposure;

(8) Use local exhaust ventilation or increase air exchanges in the HVAC system to dilute the air (including HEPA filters in the HVAC system);

(9) Where possible, use portable air purification systems for small work areas;

(10) Regularly sanitize workspace, including frequent and high-contact areas;

(11) Move high-risk employees to areas with lower potential COVID-19 exposures, such as non-customer facing and limit co-worker interactions;

(12) High-risk employees should avoid handling cash;

(13) When possible, use contactless payment options. This includes tips and gratuities;

(14) Common employee areas (restrooms, breakroom, kitchen, etc.) should be cleaned regularly. Designate areas only to be used by high-risk employees;

(15) Where possible, high-risk individuals should not ride in an elevator with others;

(16) Train all employees on COVID-19 exposure risks and prevention. Training should include high-risk factors as defined above and by CDC.”[18]

In addition, the guidance indicates that PPE, such as N-95 masks or other similar protective masks, may be used for all high-risk employees to the extent the masks are available, and eye and face protection and gloves may be used by all individuals.[19]  Businesses should also post signs to encourage the general public to wear face masks before entering the business.[20]  

The guidance also provides industry-specific recommendations that correspond to the industries listed in the Phased Guidelines promulgated by the Utah Department of Health (discussed above), to further assist employers with protecting high-risk employees.[21] For instance, restaurants should use disposable dinner and drink ware and electronic or disposable menus, and provide protective masks for employees.[22] In addition, high-risk employees should be assigned to low exposure areas that do not involve face to face interaction with customers.[23] For the retail industry, low-risk employees should be assigned to cashiering and other customer-facing work, as well as handling returns that cannot be disinfected, and restocking clothing from dressing rooms.[24] For the personal services industry, employees should use physical barriers if possible, and “all employees should use aprons, gloves, eye, and face protection in addition to protective masks.”[25]

To ensure compliance with the Governor’s Order and the Labor Commission’s guidance to protect high-risk employees, it is strongly recommended that employers seek legal advice prior to re-opening or requiring employees to return to the workplace.

For questions, please contact Christina Jepson by sending an email to cjepson@parsonsbehle.com or call 801-536-6820.    

 

[1] https://drive.google.com/file/d/1xcR8cszh7ATSZY2Y2NeCkzo5mV4gD3qj/view (last visited May 1, 2020).

[2] Id.

[3] “High-risk areas” are identified and monitored by the CDC. See https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html#travel-1 (last visited May 1, 2020).

[4] http://www.ulct.org/wp-content/uploads/sites/4/2020/04/Phased-Health-Guidelines-V4.0.pdf (last visited May 1, 2020).

[5] https://drive.google.com/file/d/1xcR8cszh7ATSZY2Y2NeCkzo5mV4gD3qj/view (last visited May 1, 2020).

[6] Id.

[7] http://www.ulct.org/wp-content/uploads/sites/4/2020/04/Phased-Health-Guidelines-V4.0.pdf (last visited May 1, 2020).

[8] For more information about face masks as PPE, see this article: https://www.parsonsbehle.com/publications/what-employers-need-to-know-about-the-cdc-s-recent-recommendation-to-wear-cloth-facemasks

[9] http://www.ulct.org/wp-content/uploads/sites/4/2020/04/Phased-Health-Guidelines-V4.0.pdf (last visited May 1, 2020).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] https://laborcommission.utah.gov/wp-content/uploads/2020/05/COVID19RECOMMENDATIONS (last visited May 1, 2020). Pregnant women have not been shown to be at higher risk for COVID-19, specifically, but are “known to be at risk with severe viral illness.” Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.