Client Alert

White House Guidelines for “Opening Up America Again”: Some Clarity, Much Uncertainty

April 20, 2020

By Ira J. Klein & Peter H. Weiner

  1. Introduction

    On April 16, 2020, President Trump issued new guidelines (“White House Guidelines” or “Guidelines”) to assist state and local officials in determining when to begin easing social distancing guidelines and stay-at-home orders initially issued in response to the COVID-19 pandemic.

    The White House Guidelines propose a three-phased approach contingent upon meeting “gating criteria” and fulfilling “preparedness responsibilities” prior to advancing to each reopening phase for a particular state and/or region. Significantly, the White House Guidelines acknowledge that state and local officials may need to tailor the criteria to local circumstances and suggests that governors work on a regional basis to do so.

    The White House Guidelines, like most state and/or regional guidelines, rely heavily on testing capacity and the ability to perform contact tracing as predicates for phased opening, but do not include specific thresholds that inform when it is safe and appropriate to move on to the next phase. The uncertain availability of testing and contact tracing protocols renders most of the phases uncertain both as to timing and practical steps. The White House Guidelines should properly be viewed as preliminary guidance, as not only will state governors make the ultimate decisions on when to ease stay-at-home orders, but further guidance from federal, state, and local agencies will be forthcoming, including frequent updates to any such guidance. Below, we consider key takeaways from the guidelines, including synergies and differences from key state plans to begin easing social distancing.

  2. General and Ongoing Guidance for Individuals and Employers (Across All Phases)

    The White House Guidelines acknowledge that individuals and employers must continue to take steps to mitigate the spread of COVID-19, identifying specific practices that citizens and employers should implement.

    The Guidelines instruct citizens to practice good hygiene (e.g., avoid touching their faces, use face coverings while in public, wash hands frequently with soap and water or hand sanitizer, disinfect frequently used items/surfaces), and stay home when feeling sick. Employers are encouraged to “develop and implement appropriate policies, in accordance with federal, state, and local regulations and guidance, and informed by industry best practices” with respect to (a) social distancing; (b) protective equipment; (c) temperature checks; (d) testing, isolating, and contact tracing; (e) sanitation; and (f) business travel. The guidelines do not otherwise explain what is recommended or accepted with regard to these topics.

    In practice, there is often substantial overlap in what is recommended by the White House Guidelines, the Centers for Disease Control (“CDC”), and state and local agency orders and guidance. The White House Guidelines specifically encourage the continued adherence to “state and local guidance as well as complementary CDC guidance, particularly with respect to face coverings.” As a result, CDC guidance will continue to be a touchstone for employers as it provides a variety of resources for businesses and employers to consider and implement to ensure that the workplace remains safe.1

    However, the White House Guidelines include significant items that do not, as of yet, appear to have been adopted as best practices. For example, while many jurisdictions are requiring or expecting employers to monitor their workforce for symptoms indicative of COVID-192 and prohibit symptomatic employees from returning to the workplace (as opposed to working from home), the Guidelines advise that symptomatic workers should stay home “until cleared by a medical provider.” The requirement to only allow workers to return “until cleared” by a medical provider may prove problematic (and contravenes prior guidance issued by the Occupational Safety and Health Administration3), as medical providers may not be able to provide timely certification. Employers are also expected to “develop and implement policies and procedures for workforce contact tracing” in the event an employee is confirmed to have COVID-19, but no approved training or protocols have been publicly issued for contact tracing for state governments, much less employers.

    Ultimately, because the White House Guidelines identify state, local, and CDC guidance as paramount in setting a standard for appropriate precautions, individuals and employers should continue to be vigilant in monitoring, reviewing, and complying with evolving CDC, state, and local guidance and orders.

  3. The White House Guidelines Propose State/Regional “Gating Criteria” and “Preparedness Responsibilities” Prior to Phased Opening

    1. Gating Criteria

    The White House Guidelines acknowledge that certain “gating criteria” must be met on a state or regional basis prior to relaxing stay-at-home orders. The gating criteria include considerations relating to (1) symptoms in the population; (2) cases of COVID-19; and (3) hospital capacity. Specifically, the criteria include:

    Symptoms in the Population:

    • A “downward trajectory” of influenza-like illness reported within a 14-day period; and

    • A “downward trajectory” of COVID-19-like cases reported within a 14-day period.

    Confirmed Cases of COVID-19:

    • A “downward trajectory” of documented cases within a 14-day period; and

    • A “downward trajectory” of positive tests as a percentage of total tests within a 14-day period (flat or increasing volume of tests).

    Hospital Capacity:

    • Able to treat all patients in crisis case; and

    • Robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

    The White House Guidelines do not define “downward trajectory,” but it is clear that the expectation is that the COVID-19 curve must have flattened, with fewer diagnosed cases of COVID-19, and an overall improvement in the number of illnesses reported over a two-week period. Different states may interpret these Guidelines very differently.

    1. Preparedness Responsibilities

  4. The White House Guidelines Identify a Phased Approach with Three Phases

    The phased approach is meant to gradually relax social distancing orders in a series of phases, with the decision to proceed to the next phase informed by data. By making data-driven decisions, the phased approach is designed to mitigate the risk of resurgence, protect the most vulnerable among the population, and be adopted statewide or county-by-county, as governors determine prudent.

    Each phase contains guidance for individual citizens, as well as employers.

    1. Phase I

      Upon meeting the gating criteria and preparedness responsibilities, a state or region may begin Phase I of reopening. In Phase I, individual citizens are expected to take the following precautions:

      • Vulnerable individuals (i.e., elderly, as well as those with serious underlying health conditions) should continue to shelter in place;

      • Those in public should continue to maximize physical distance;

      • Gatherings of more than 10 people should be avoided if appropriate distancing is not practical; and

      • Non-essential travel should be minimized and be conducted in accordance with CDC travel guidelines.

      Employers should:

      • Continue to encourage telework whenever possible;

      • Return to work in phases;

      • Close common areas where people will congregate/interact;

      • Enforce strict social distancing protocols;

      • Minimize non-essential travel; and

      • Strongly consider special accommodations for vulnerable populations.

      Additionally, certain types of businesses may reopen. For example, schools and childcare facilities should remain closed4, and visits to senior living facilities and hospitals should be prohibited. Large venues (e.g., sit-down dining, movie theaters, and places of worship) may reopen under strict physical distancing protocols. Gyms can open under “strict” physical distancing and sanitation controls, while bars should remain closed.

      Following the opening of Phase I, a state or region must carefully collect and review the data to determine if the gating criteria continue to be met, or if stricter controls remain necessary. If the gating criteria are met after relaxing social distancing (i.e., downward trajectory after at least 14 days), the state or region may proceed to Phase II.

    2. Phase II

      In Phase II, vulnerable individuals should continue to shelter in place, and individuals in public should continue to maximize physical distance. Social settings of more than 50 people—as opposed to 10 people—should be avoided unless precautionary measures are taken. Non-essential travel may resume.

      Employers in Phase II should operate largely as in Phase I, although non-essential travel may resume. Schools and childcare facilities may reopen, but visits to senior living facilities and hospitals should remain prohibited. Large venues can operate under “moderate” physical distancing protocols, and bars may operate with diminished capacity.

      As in Phase I, a state or region should not proceed to Phase III unless the gating criteria are met.

    3. Phase III

      In Phase III, vulnerable individuals should practice physical distancing, but may resume public interactions. Other individuals should “consider” minimizing time in crowded environments. Employers may resume unrestricted staffing and work. Visits to senior facilities and hospitals may also resume, although good hygiene should continue to be practiced. Large venues can operated under “limited” physical distancing protocols, and bars may operate with increased capacity.

  5. The White House Guidelines Provide a Framework but Leave Open Questions and Significant Uncertainty

    As described above, the White House Guidelines provide a framework for a phased reopening according to the situation in each state or region. However, the Guidelines are light on specifics that explain when a state or region is prepared to move on to the next phase or when a state will have fulfilled its “core preparedness responsibilities.” There is general agreement between the White House, CDC, and state and local officials that widespread testing and contact tracing are crucial as states consider when to lift stay-at-home orders, but the availability of necessary testing capacity (including for antibody tests) and contact tracing is not currently clear.

    State and local officials may look to the “gating criteria” provided by the White House Guidelines in making their determinations and issuing their own guidance, but those criteria do not provide explanatory information regarding what constitutes a “downward trajectory” in documented or symptomatic cases, and at what point it may be safe to move forward.

    Additionally, while the White House Guidelines includes a number of immediate measures for continuing social distancing, there are open questions on what constitutes “strict,” “moderate,” and “limited” social distancing as employers and businesses return to work. Furthermore, as non-essential travel resumes in Phase II and beyond, the White House Guidelines do not include any information regarding how to control for the fact that asymptomatic individuals from an area with ongoing transmission may introduce or reintroduce it to others that have already begun to relax distancing measures.

  6. States and/or Regions Will Determine When to Relax Distancing Orders

    The White House Guidelines rely on state and local officials evaluating the data for their state or region, and then making appropriate decisions regarding when to relax distancing orders.5/sup> There is general agreement between the White House Guidelines and the plans and press releases from state agencies that to successfully relax distancing orders and allow people to return to work, widespread testing and contract tracing capacity are crucial, as is the ability to further restrict distancing in the event there is a rebound or new outbreak. There is, as explained below, little as of yet in the way of specifics that will inform when particular states or regions may move to the next phase.

    1. Western States Pact (California, Oregon, and Washington)

      On April 13, 2020, the governors of California, Oregon, and Washington, in a joint statement, announced the “Western States Pact,” committing the three states to work together on a shared approach for reopening their economies. Decisions and plans to reopen the economies are to be guided by health outcomes and science, as opposed to politics, with four specific goals:

      • Protecting vulnerable populations at risk for severe disease if infected;

      • Ensuring an ability to care for those who may become sick with COVID-19 and other conditions, including adequate hospital surge capacity and supplies of personal protective equipment;

      • Mitigating the non-direct COVID-19 health impacts, particularly on disadvantaged communities; and

      • Protecting the general public by ensuring any successful lifting of interventions includes the development of a system for testing, tracking and isolating.

      Governor Newsom further identified six factors or critical areas which will govern California’s response, including:

      • Expanding testing;

      • Protecting high-risk groups, including seniors, the medically vulnerable, and people in facilities like nursing homes;

      • Ensuring hospitals have enough beds and supplies to care for patients;

      • Progress in developing treatments;

      • Ability of schools and businesses to support physical distancing; and

      • Ability to decide when to reinstitute stay-at-home orders if needed.

      Ultimately, the goals and factors set forth by the three Western states are similar to those encompassed in the White House Guidelines.

    2. Northeastern States (Connecticut, Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and Rhode Island)

      Like the Western States, the Northeastern states of Connecticut, Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and Rhode Island are establishing a council that will include one health expert, one economic expert, and the executive chief of staff from each state to “develop a fully integrated regional framework to gradually lift the states’ stay-at-home orders while minimizing the risk of increased spread of the virus.” The members of the council suggest that the Northeastern states will be making science and data-driven decisions to ensure that the economy can reopen without resulting in a resurgence.

    3. Midwestern States (Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio, and Wisconsin)

      On April 16, 2020, the Midwestern states of Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio, and Wisconsin announced a regional partnership to coordinate reopening the economy in the Midwest region. Decisions to on reopening the economy in the region will be based on four factors:

      • Sustained control of the rate of new infections and hospitalizations;

      • Enhanced ability to test and trace;

      • Sufficient health care capacity to handle resurgence; and

      • Best practices for social distancing in the workplace.

      The factors identified here are similar to those in the White House Guidelines.

  7. Conclusion/Summary

    Employers should consider the White House Guidelines, in conjunction with CDC, state, and local guidelines and orders, as preliminary guidance as they consider measures to protect employee health and safety upon returning to work. Further guidance from federal, state, and local agencies will be forthcoming, and is likely to be amended and revised frequently. Nevertheless, employers should continue to review and evaluate available guidance and any updates.

    In the interim, there will continue to be uncertainty as to when specific businesses are allowed to return, and such decisions are likely to be made on a state-by-state or regional basis (e.g., construction is considered “essential” in some areas of the country and is either currently ongoing or may resume at an earlier phase, while it remains restricted in others). As of yet, guidance available does not indicate or provide a sound means of estimating when certain activities may resume.

    Indeed, there continues to be little in the way of specifics that will inform states and employers on when to move forward, although the White House Guidelines and statements from state and local bodies suggests alignment in that such decisions will be data-driven and made with care based on infection rates and the availability of testing and contact tracing (although such availability is currently unclear). At root, the White House Guidelines, like most state and regional guidelines confirm that immediate measures must include continued social distancing, with specifics on when and how to move forward forthcoming.

1   For example, the CDC’s Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) includes specific recommendations, and references the Occupational Safety and Health Administration’s Guidance on Preparing Workplaces for COVID-19, OSHA publication 3990 targeted at reducing transmission among employees; maintaining healthy business operations (e.g., identifying a workplace coordinator for COVID-19 issues, implementing flexible policies, and establishing policies and practices for social distancing); and maintaining a healthy work environment (e.g., considering engineering controls such as such as increasing ventilation rates and increasing physical space between employees by moving them or installing barriers, supporting respiratory etiquette and hand hygiene for employees, customers and visitors, and performing cleaning and disinfection). The CDC has also provided specific cleaning and disinfection guidance for facilities as well as guidance on Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. Our Client Alert regarding the CDC’s critical infrastructure worker safety guidance is available here. Other pertinent CDC guidance includes the use of face coverings, social distancing, and when to end home isolation.

2   See, e.g., Order of the Health Officer No. C19-07b in the City and County of San Francisco, requiring daily symptom checks of employees at “Essential Businesses” prior to starting work.

3  See OSHA, Guidance on Preparing Workplaces for COVID-19, OSHA publication 3990, March 2020, p. 11.

4  It has been widely recognized that a “return to work” scenario may be severely impacted if schools, childcare facilities, and other organized youth activities and groups remain closed.

5   The President at one time arrogated such authority to himself, but has since agreed that the power to determine when to relax distancing orders rests with the states.

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