Since March 2020, St. Louis County Executive Dr. Sam Page, and the county’s acting director of the Department of Public Health (DPH), Dr. Emily Doucette, have issued more than 20 orders and “safe operating guidelines” regarding COVID-19. On July 29, 2020, with an effective date of July 31, 2020, the DPH issued its third amended public health order setting forth its current “Business and Individual Guidelines for Social Distancing and Re-Opening.” In some respects, this third amended order is a significant step backwards toward stricter requirements compared with the county’s original reopening guidelines.
Since the DPH released its original social distancing and reopening order on May 8, 2020, the county’s general reopening guidelines have required businesses “that engage in direct interactions with members of the public, and primarily provide goods for sale, food or drink for consumption, personal services requiring sustained in-person contact, or religious or spiritual services,” to limit the number of individuals on their premises. Those businesses must follow the general reopening guidelines and their own industry-specific operation guidelines. As noted in the third amended order, emergency and essential-type services (such as hospitals and airports) and “[o]ther professional businesses that do not engage in direct interactions with the public” are not subject to these same general capacity limitations. Instead, these “other businesses” must follow the general reopening guidelines and their own separate industry-specific guidelines. All businesses must also follow the DPH’s face covering order, which was issued on July 1, 2020.
The third amended order calls for public-facing businesses to reduce their capacities back to the early June 2020 level of 25 percent (down from 50 percent). Because the third amended order does not define which businesses are public facing, the distinction described above remains the same. Nonpublic-facing businesses do not have general capacity limitations like public-facing businesses. If they have capacity limitations at all, they are context-specific and can be found in their industry-specific operation guidelines. Because some of those guidelines have yet to be updated, the third amended order contains a caveat: “In the event there is an inconsistency between this order and the general and business-specific operating standards and guidelines published by the DPH, this Order shall govern.” Some of the highlights from the third amended order include:
- Gatherings of individuals outside the home are limited to 50 persons or fewer, unless excepted by the order. The businesses excepted include capacity-limited businesses, medical care facilities, public transportation, shelters, schools, daycare facilities, polling places, and nonpublic-facing businesses.
- Businesses that have capacity limits are restricted to 25 percent or less of their authorized fire or building code occupancies and have additional requirements as follows:
- Ensuring six feet of distance (through physical barriers if necessary) between customers and employees; marking that six feet of distance wherever people could congregate; signage in and out of the facility regarding face covering, social distancing, and occupancy requirements; prohibiting “customers from bringing outside containers, including reusable bags or boxes, into the facility”; and arranging “for contactless payment, pick-up and delivery options whenever feasible.”
- Some businesses that have capacity limits are also required to submit plans for approval to DPH in order to remain open, do business, or operate the events and venues they may have planned. Those businesses include entertainment and attraction venues, concert venues, mass sporting events, museums; casinos, and playgrounds.
- Drinking establishments that are licensed to sell alcohol and whose total food sales for onsite consumption comprise 25 percent or less of their annual gross sales, must close and have no occupancy by 10:00 p.m.
- Internal establishments, such as concession stands, must follow the rules for their types of establishments even though they may be part of some other establishment.
- All businesses, regardless of type, must follow social distancing and disinfection requirements. Employees must wear face coverings unless working alone in an enclosed area. Businesses must provide face coverings to all employees or volunteers, and can deny entry to customers (within the confines of Title I of the Americans with Disabilities Act) who are not wearing face coverings and refuse to comply. In addition, all businesses, regardless of type, must take these added precautions:
- Require “frequent [d]isinfection [p]rocesses of all high touch surfaces”; provide breaks for handwashing; provide training about disinfection, social distancing, and face coverings; conduct health screenings of employees and encourage them to quarantine or isolate if they have or have been exposed to COVID-19; follow general and business specific guidelines issued by the DPH; and comply with any DPH investigation or contact tracing efforts.
- Disinfection and social distancing procedures are defined in the order and include regularly and properly washing hands or using proper hand sanitizer; providing handwashing stations; keeping a six-foot distance; covering coughs and sneezes with something other than the hand; and not shaking hands. Procedures also include regularly sanitizing often high-touch surfaces such as handrails; elevator buttons; door handles; checkout areas, including keypads, credit card machines, and other such systems; carts and baskets; restrooms; and shared computers or kiosks.
- Aside from potential emergency injunctive relief or other civil relief sought by the St. Louis County counselor, or potential criminal charges brought by the St. Louis County prosecuting attorney, failure to comply with the order could lead to DPH closing, quarantining, or isolating a business establishment, and future loss of financial benefits.
Some differences between the prior two orders and this third order are subtle. For example, under the DPH’s first amended order, which was released on May 30, 2020, and took effect on June 1, 2020, gatherings were limited to 10 or fewer people (instead of 50), whether inside or outside. While business capacity limitations still applied only to businesses identified in the general capacity limitations guidance or industry specific guidance, those capacity limitations for public-facing businesses were split into two groups: 25 percent for businesses having less than 10,000 square feet of space, and 10 percent for businesses having 10,000 or more square feet. Under the second amended order, the only limit on gatherings was the ability to socially distance and capacity restrictions were confined to what was, again, in the general capacity limitations guidance or the industry-specific guidance (usually 50 percent). Additionally, under the prior orders, drinking establishments were allowed to remain open past 10:00 p.m.
One of the biggest differences between the first two amended orders and the third amended order is the enforcement mechanism. Given the threat of closure actions and other civil and criminal penalties for noncompliance, all employers may want to double-check to ensure they are in compliance with general capacity limitation guidance (if public-facing), their industry-specific guidance (where it does not conflict with the latest order) and, ultimately, the requirements of the third amended order.
Many industry-specific guidelines have not been updated yet, but as of now, the general capacity limit guidelines have been updated. It is unclear when or how the industry-specific guidance will be amended.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.