The CDC is clear that, as applied to communities of faith, its guidelines are recommendations to be considered, but are not intended to infringe on First Amendment rights.

As states and communities begin the process of reopening in the wake of the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) has released business plans to provide interim guidance to certain programs and industries during the reopening process. The CDC released its proposed business plans for the following programs and industries: child care programs; schools and day camps; communities of faith; employers with vulnerable workers; restaurants and bars; and mass transit administrators. Links for additional CDC guidance for each can be found in their respective sections within the guidance.

Child Care Programs

Per the CDC guidelines, child care programs in communities that are deemed to be significant mitigation areas by state and local authorities should remain closed, except to provide child care services for essential employees such as healthcare workers. In the event a person diagnosed with COVID-19 is found to pose a risk to the community, programs may consider closing for a few days for cleaning and disinfection. In its business plan, the CDC divided the opening or reopening status of child care programs into three phases:

Phase 1: Restrict to children of essential workers in areas of significant mitigation.

Phase 2: Expand to all children with enhanced social distancing measures.

Phase 3: Remain open for all children with social distancing measures.

The guidelines provide detailed instructions for all three phases with regard to (re)opening/closing procedures, safety actions, and monitoring and preparing. The recommended safety actions for all three phases include:

• The promotion of healthy hygiene practices (washing hands, wearing face coverings, etc.);
• Intensified cleaning, disinfection and ventilation (especially for frequently touched surfaces and increasing circulation by opening windows and doors);
• Limitation of sharing (separate storage containers or cubbies for each child’s belongings, adequate supplies for high-touch materials like art supplies and avoiding sharing electronic equipment, books and games).

Safety actions also include ensuring social distancing, which for Phases 1 and 2 includes ensuring that the same child care provider stays with the same group of children each day, limiting mixing between the groups, canceling all field trips, restricting nonessential visitors and volunteers, serving meals in the classroom and avoiding communal areas like cafeterias and game rooms and staggering arrival and drop-off times. Phase 3 social distancing measures are similar to those for Phases 1 and 2, however the guidelines instruct the program to “consider” these measures. The guidelines also recommend that Phase 3 groups restrict attendance from higher risk areas like Phases 1 and 2.

The instructions for monitoring and preparing are the same for all three phases and include:

• Checking for signs and symptoms (screening each child upon arrival with temperature checks and encouraging staff to stay home if they are sick);
• Planning for when a staff member, child or visitor becomes sick (identifying and closing off an area to separate anyone who exhibits symptoms of COVID-19, establishing procedures for transportation, waiting as long as possible―ideally 24 hours―to clean/disinfect the separated area to limit risk to individuals cleaning and informing anyone exposed to a person diagnosed with COVID-19 to stay home and monitor symptoms); and
• Maintaining healthy operations (implement flexible sick leave policy, monitor absenteeism to identify trends in employee or child absence due to illness, have a roster of qualified backup staff, designate a staff person to respond to COVID-19 concerns and create a communication system available to both staff and families for self-reporting of symptoms).

When following the guidelines listed above, it is important to comply with applicable confidentiality and privacy laws.

Schools and Day Camps

The CDC has also provided guidelines for the opening or reopening of K-12 schools, summer day camps and other peer-to-peer learning centers. In the event a person diagnosed with COVID-19 is found to pose a risk to the community, programs may consider closing for a short time (one to two days) for cleaning and disinfection. Again, the CDC has divided the opening or reopening status of child care programs into three phases:

Phase 1: Schools that are currently closed remain closed. E-learning or distance learning opportunities should be provided for all students as should student services such as school meal programs. Camps are restricted to children of essential workers and children who live in the local geographic area only.

Phase 2: Remain open with enhanced social distancing measures and children who live in the local geographic area only.

Phase 3: Remain open with social distancing measures. Restrict attendance to those from limited transmission areas (other Phase 3 areas) only.

The guidelines provide detailed instruction for all three phases with regard to (re)opening/closing procedures, safety actions, and monitoring and preparing, which closely mirror those provided for the child care programs. In addition to the guidelines that were provided for child care programs, the CDC also recommends that schools and day camps enact cleaning/disinfection and social distancing measures for school buses and school bus operators. Furthermore, school nurses should play an active role in assisting with the establishment of a procedure for separating students with symptoms of COVID-19, monitoring health clinic traffic and types of illnesses/symptoms and ensuring that the health clinic is properly cleaned, sanitized and disinfected.

Again, when following the guidelines listed above, it is important to comply with applicable confidentiality and privacy laws.

Communities of Faith

The CDC is clear that, as applied to communities of faith, its guidelines are recommendations to be considered, but are not intended to infringe on First Amendment rights. The federal government may not prescribe standards for interactions of faith communities in houses of worship and no faith community should be asked to adopt any mitigation strategies that are more stringent than those asked of similarly situated entities or activities in accordance with the Religious Freedom and Restoration Act. In communities deemed by the CDC to be significant mitigation areas, the risk to the larger community of continuing or resuming in-person gatherings should be taken into account and virtual options strongly considered. In the event a person diagnosed with COVID-19 is found to pose a risk to the religious community, it is strongly suggested that the building close so that the community can properly clean and disinfect the area and the building where that person was present. Again, the CDC has divided the opening or reopening status of faith communities into three phases:

Phase 1: Limit gatherings to those that can be held virtually (by remote viewing) for vulnerable populations and consider video streaming or drive-in options for services. Limit the size of in-person gatherings in accordance with the guidance and directives of state and local authorities, and maintain social distancing.

Phase 2: Consider continuing to hold gatherings virtually (by remote viewing) for vulnerable populations and consider video streaming or drive-in options for services. Limit the size of in-person gatherings in accordance with the guidance and directives of state and local authorities, and maintain social distancing.

Phase 3: Limit gatherings to those that can maintain social distancing and consider video streaming or drive-in options for services for vulnerable populations.

The guidelines provide detailed instruction for all three phases with regard to (re)opening/closing procedures, safety actions, and monitoring and preparing. The recommended safety actions for all three phases include:

• The promotion of healthy hygiene practices (washing hands, wearing face coverings, etc.);
• Intensified cleaning, disinfection and ventilation (especially for frequently touched surfaces and increasing circulation by opening windows and doors);
• Limit community sharing of worship materials and other items (encourage congregants to use/bring their own copies of prayer books/hymnals/religious texts or project prayers/songs/texts, modify methods of financial contribution to include stationary collection boxes or mail as opposed to trays or baskets, consider mitigating close physical contact during religious rituals consistent with community faith traditions, avoid food offerings shared from common dishes and have prepackaged boxes or bags for each attendee);
• Promote social distancing (limit size of gatherings, use video streaming or drive-in services for worship as well as religious education classes and support groups, add additional services to weekly schedule, consider holding gatherings in large well-ventilated areas or outdoors, space out seating for attendees 6 feet apart, consider using soloists and limiting number of choir and musical ensemble, and consider having clergy hold virtual visits as opposed to in-home ones).

The CDC’s instructions for monitoring and preparing for communities of faith largely mirrors those for the child care programs, including checking for signs and symptoms, planning for when a staff member or congregant becomes sick and maintaining healthy operations.

Employers with Vulnerable Workers

The CDC has provided guidelines to employers with vulnerable employees, which include individuals over the age of 65 and those with underlying medical conditions such as chronic lung disease, asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease and chronic kidney disease that requires dialysis. Vulnerable workers should be encouraged to self-identify and employers should avoid making unnecessary medical inquiries. Employers should be prepared to close for a few days if there is a case of COVID-19 in the workplace, or for longer if cases increase in the local area. Again, the CDC has divided the opening or reopening status of employers with vulnerable workers into three phases:

Phase 1: Reopen only if employer can ensure strict social distancing, proper cleaning and disinfecting requirements and protection of their workers and customers; vulnerable workers are recommended to shelter in place.

Phase 2: Reopen only if employer can ensure moderate social distancing, proper cleaning and disinfecting requirements and protection of their workers and customers; vulnerable workers are recommended to shelter in place.

Phase 3: Reopen only if employer can ensure limited social distancing, proper cleaning and disinfecting requirements and protection of their workers and customers.

The guidelines provide detailed instruction for all three phases with regard to (re)opening/closing procedures, safety actions, and monitoring and preparing. The recommended safety actions for all three phases include the promotion of healthy hygiene practices (washing hands, wearing face coverings, having an adequate supply of soap and hand sanitizer with at least 60 percent alcohol) and intensified cleaning, disinfection and ventilation (especially for frequently touched surfaces and increasing circulation by opening windows and doors).

In order to ensure social distancing and limit travel and commuting practices, the CDC guidelines recommend that in Phase 1, businesses:

• Limit service to drive-through, curbside takeout or delivery;
• Close communal spaces such as breakrooms;
• Cancel all gatherings or meetings of more than 10 people;
• Restrict any nonessential visitors, volunteers and activities involving external groups or organizations; and
• Cancel all nonessential travel.

The guidelines for Phase 2 and 3 include:

• Stagger use and clean/disinfect communal spaces in between uses;
• Cancel all gatherings or meetings of more than 50 people (Phase 2 only);
• Consider limiting any nonessential visitors, volunteers and activities involving external groups or organizations (Phase 2 only); and
• Consider resuming all nonessential travel in accordance with state and local regulations and guidance.
• The guidelines recommend that all phases:
• Consider installing physical barriers and rearranging layout to ensure 6 feet separation;
• Encourage telework and teleconferencing for as many workers and meetings as possible;
• Consider rotating or staggering shifts;
• Limit sharing of equipment and supplies; and
• Encourage workers who use public transportation to consider teleworking.

The instructions for monitoring and preparing are the same for all three phases and include:

• Checking for signs and symptoms (conducting daily temperature checks and symptom screening, encouraging workers who are sick to stay at home);
• Planning for when a staff member, child or visitor becomes sick (workers with symptoms should immediately be separated and sent home, establishing procedure for transportation, waiting as long as possible―ideally 24 hours―to clean/disinfect the separated area to limit risk to individual cleaning and inform anyone exposed to a person diagnosed with COVID-19 to stay home and monitor symptoms); and
• Maintaining healthy operations (implement flexible sick leave policy, monitor absenteeism to identify trends in employee absence due to illness, have a roster of qualified backup staff, designate a staff person to respond to COVID-19 concerns and create a communication system available to employees for self-reporting of symptoms).

When following the guidelines listed above, it is important to comply with applicable laws concerning confidentiality, privacy, the Americans with Disabilities Act and OHSA.

Restaurants and Bars

The CDC has provided guidelines to businesses in the food service industry and has divided the opening or reopening status of restaurants and bars into three phases. These establishments should be prepared to close for a few days if there is a case of COVID-19 in the building, or for longer if cases increase in the local area. For all phases, the CDC recommends that employers consider assigning vulnerable workers duties that minimize their contact with customers and other employees.

Phase 1: Bars remain closed and restaurant service should remain limited to drive-through, curbside takeout or delivery with strict social distancing.

Phase 2: Bars may open with limited capacity; restaurants may open dining rooms with limited seating capacity that allows for social distancing.

Phase 3: Bars may open with increased standing room occupancy that allows for social distancing; restaurants may operate while maintaining social distancing.

The guidelines provide detailed instructions for all three phases with regard to (re)opening/closing procedures, safety actions, and monitoring and preparing. The recommended safety actions for all three phases include the promotion of healthy hygiene practices (washing hands, wearing face coverings, having an adequate supply of soap and hand sanitizer with at least 60 percent alcohol). The guidelines also recommend several intensified cleaning, disinfection and ventilation measures for all phases, including:

Clean and disinfect frequently touched surfaces at least daily and shared objects between use.

• Wash, rinse and sanitize food contact and preparation surfaces as well as beverage equipment after use.
• Provide individual disinfectant wipes in the bathrooms.
• Use disposable or digital menus, single-serving condiments and no-touch trash cans and doors.
• Use touchless payment options as much as possible.
• Use disposable utensils and plates if possible or ensure that nondisposable food service items are washed and handled with gloves.
• Ensure employees wear gloves during and wash hands after handling food service items, washing dishes or taking out trash.
• Ensure ventilation system is working properly and open doors/windows or use fans when possible.

The CDC also recommends the following social distancing measures be taken:

Phase 1

• Limit service to drive-through, curbside takeout or delivery.
• Provide physical guides such as tape on floor and post signs to encourage customers to wait in their cars for takeout (recommended for all phases).
• Consider installing physical barriers such as sneeze guards or partitions at cash registers (recommended for all phases).
• Restrict number of employees in shared spaces (recommended for all phases).
• Rotate or stagger shifts.

Phases 2 & 3

• Provide drive-through, curbside takeout or delivery service and prioritize outdoor seating.
• Reduce occupancy and limit party size.
• Encourage customers to wait in their cars to be seated and use phone or app technology instead of buzzers for seating.
• Allow dine-in customers to order ahead of time to limit occupancy time in restaurant.
• Avoid offering self-serve options like buffets, salad bars or drink stations.

The CDC’s instructions for monitoring and preparing are substantially similar to those outlined for employers with vulnerable workers. When following the guidelines listed above, it is important to comply with applicable laws concerning confidentiality, privacy, the Americans with Disabilities Act and OHSA. Complete lists for intensified cleaning/disinfection and social distancing measures can be found within the restaurant and bar section of the CDC business plan guidance.

Mass Transit Administrators

The CDC has provided guidelines to mass transit administrators and has divided its guidelines for mass transit systems returning to full service into three phases. For all phases, the CDC recommends that routes be restricted between areas experiencing different levels of transmission and that administrators consider assigning vulnerable workers duties that minimize their contact with passengers and other employees. The guidelines also encourage mass transit administrators to check state and local health department notices daily regarding transmission and mitigation levels in local areas in order to adjust operations accordingly, and also to be prepared to reduce services if the community mitigation level increases in the local area.

Phase 1: Restrict ridership to essential critical infrastructure workers in areas needing significant mitigation and maintain strict social distancing as much as possible.

Phase 2: Maintain social distancing between transit riders and employees as much as possible.

Phase 3: Encourage social distancing as much as possible.

The guidelines provide detailed instruction for all three phases with regard to resuming full service procedures, safety actions, and monitoring and preparing. The recommended safety actions for all three phases include the promotion of healthy hygiene practices (washing hands, wearing face coverings, having an adequate supply of soap and hand sanitizer with at least 60 percent alcohol). The guidelines also recommend several intensified cleaning, disinfection and ventilation measures for all phases, including:

• Clean, sanitize and disinfect frequently touched surface areas like kiosks, touchscreens, turnstiles, handrails and elevator buttons at least daily.
• Clean, sanitize and disinfect operator area between shifts.
• Use touchless payment options as much as possible.
• Ensure employees wear gloves during and wash hands after handling equipment or taking out trash.
• Ensure ventilation system is working properly and open doors/windows or use fans when possible.

The CDC also recommends the following social distancing measures be taken:

Phases 1 & 2

• Ask bus passengers to enter/exit through rear doors.
• Reduce maximum occupancy on busses and individual train cars and increase service on crowded routes as much as possible.
• Provide physical guides (floor tape or decals) to ensure passengers remain at least 6 feet apart.
• Install physical barriers such as sneeze guards or partitions at kiosks and transit vehicles.

Phase 3

• Consider or continue instituting measures to physically separate or create distance between passengers.
• Provide physical guides (floor tape or decals) to ensure passengers remain at least 6 feet apart.
• Install physical barriers such as sneeze guards or partitions at kiosks and transit vehicles.

When following the guidelines listed above, it is important to comply with applicable laws concerning confidentiality, privacy, the Americans with Disabilities Act and OHSA.

Complete lists for intensified cleaning/disinfection and social distancing measures can be found within the mass transit administrators section of the CDC business plan guidance.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage. 

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If you have any questions about this Alert, please contact Sharon L. Caffrey, Eve I. Klein, Gregory D. Herrold, or any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

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