December 6, 2021

Volume XI, Number 340


December 06, 2021

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Delaware Issues Guidance for Employers as State Enters Phase 2 of Reopening Plan

Beginning on June 15, 2020, at 8:00 a.m., Delaware will move into the second phase of its three-phase reopening plan following the recent lifting of the state’s stay-at-home order. In Phase 2, retail establishments, restaurants, and other businesses that were previously permitted to reopen at 30 percent of fire occupancy requirements will be allowed to expand to 60 percent of the fire occupancy limits for their premises.

The State of Delaware has issued guidance for employers resuming operations in Phase 2. Similar to the Phase 1 guidelines, which governed Delaware’s initial reopening on June 1, 2020, the Phase 2 guidelines provide general guidance for businesses, as well as industry-specific guidance, as the state enters the next stage of reopening and economic recovery.

General Guidance for Businesses

  • In Phase 2, businesses are responsible for following the “Responsibilities for all Businesses,” set forth in the State of Emergency Order.

  • “Common areas where personnel are likely to congregate and interact should remain closed, or employers should enforce strict social distancing protocols.”

  • “Employees and customers have a responsibility to self-quarantine if they have a reason to expect that they may be ill or may have come into contact with COVID-19. Employees who are symptomatic must not physically return to work until cleared by [the Delaware Division of Public Health].”

  • “Employers are encouraged to continue teleworking. Employees who have been working from home throughout this crisis should continue working from home unless there is a substantive change to business operations in Phase 2 (e.g., a business was closed, but now it’s open).”

  • “All surfaces touched by customers, including doors, restrooms, and point of sale infrastructure must be disinfected using an [U.S. Environmental Protection Agency (EPA)]-approved disinfectant every 15 minutes to 2 hours.”

  • “All employees required to go to work should perform a daily health check as prescribed by the Delaware Division of Public Health.”

  • “All employees should wash hands regularly with soap and water throughout the work day, and in particular after any time they come into contact with a customer. Hand sanitizer should be used to supplement hand washing throughout the day. Employees must also social distance from each other while working. This can be accomplished through spacing or moving workstations, staggering shifts or other means.”

  • “Businesses must make hand sanitizer or handwashing stations readily available for all employees, patrons, and visitors throughout the business’[s] location, including at each entry and exit at a minimum. Hand sanitizer must be composed of at least sixty percent (60%) ethanol or seventy percent (70%) isopropanol.

  • “Downtime should be given between shifts and after closing for thorough cleanings of an establishment at a minimum after each day.”

  • “Employers must post signs on how to stop the spread of COVID-19, hand hygiene, and properly wear a cloth face covering.”

Industry-Specific Guidance

In addition to the general guidance above, the State of Delaware has provided industry-specific guidance that businesses must adhere to during the Phase 2 reopening, including:


  • “The total number of customers within a facility [may not] exceed 60% of … fire occupancy requirements.”

  • Face coverings are required.

  • Social distancing should be maintained.

Arts and Culture, Museums, Galleries, and Historical Attractions

  • “For indoor venues, limit up to 60% of fire occupancy requirements while ensuring 6 feet radius around individual household units.”

  • “For fixed seating venues, only 60% of patron seating may be occupied and there must be a 6 feet radius around individual household units.”

  • “May offer visits without reservations.”

  • “[May] resume guided tours with social distancing.”

  • “May resume shuttle service with social distancing.”

  • “Arts and music instruction may resume with social distance. Equipment must be properly sanitized.”

  • “May remove face coverings during performance[s].”

Food and Drink Establishments

  • “The total number of guests within a facility [may not] exceed 60% of fire occupancy requirements.”

  • “Customers from different households may sit at a table together as long as they are socially distanced.”

  • “Bar service and seating at a bar may reopen as long as proper social distancing is observed between those not of the same household.”

  • Tables must be set eight feet apart so that guests are six feet apart.

  • “For restaurants that provide table service: Customers must have a reservation unless the establishment has a system for ensuring that customers without a reservation do not gather while waiting to be seated.”

  • Self-service is prohibited.


  • “The total number of people within a mall [may not] exceed 60% of fire occupancy requirements.”

  • Face coverings are required.

  • Social distancing should be maintained.

  • Food and drink facilities, as well as personal care facilities, must follow their respective industry guidelines.

Personal Care Services

  • “The total number of customers within a facility [may not] exceed 30% of fire occupancy requirements.”

  • “Services must be provided by appointment only and appointments must be scheduled with a minimum of fifteen (15) minutes between appointments for proper cleaning.”

  • “[F]ace coverings must be used by staff and customers at all times.”

  • “Social distancing requirements of 6 feet should be maintained when feasible.”


  • “Open houses [are] permitted, while following indoor gathering limits.”

  • Social distancing should be maintained.

  • Proper disinfecting of property is required.

Child Care

  • “All Delaware families can access child care.”

  • Restrictions on classroom sizes exist.

Commercial Lodging

  • “The total number of guests in all common areas (lobby, food and drink, gyms, etc.) shall at no time exceed 60% of fire occupancy requirements (excluding staff [and guests within rooms]).”

  • Regular cleaning of rooms and common areas must be performed using an EPA-approved disinfectant.

  • “Food and drink facilities must follow food and drink industry guidelines.”

  • “Exercise facilities must follow exercise facility guidelines.”

  • “Pools must follow pool guidance.”

Exercise Facilities

  • “The total number of customers within a facility [may not] exceed 30% of fire occupancy requirements.”

  • “If an individual is doing a strenuous exercise where a mask may interfere with [his or her] breathing and [the individual is] at least six feet away from others, the individual can remove [his or her] face covering.”

  • Strict social distancing is required.

  • Classes under 10 people are allowed.

  • Thorough cleaning and disinfecting of shared equipment is required.

For a full list of industries and further industry-specific guidance, please consult Delaware’s Phase 2 Guidelines.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 169

About this Author

Dean J. Shauger Labor $ Employment Litigation Attorney Ogletree Deakins Law Firm Philadelphia

Dean Shauger is an associate in the Philadelphia office of Ogletree Deakins.  Dean represents employers in labor and employment matters, including litigation involving discrimination, wage and hour issues, and proceedings before state and federal courts and administrative agencies.  His litigation experience encompasses all aspects of litigation, as well as assisting with settlement opportunities where litigation is not consistent with a client’s ultimate objective.

Dean graduated magna cum laude from Villanova University School of Law...

Daniel O'Meara, Shareholder

Daniel O’Meara is a Shareholder in the Philadelphia office of Ogletree Deakins. Dan has been a practicing attorney for nearly 30 years, with extensive experience in employment litigation, labor relations and preventive human resource practices. Dan has substantial experience in matters involving trade secrets, noncompete agreements, and the employee duty of loyalty. He has written and spoken extensively on these subjects, and in a two-year period, obtained more than 60 injunctions for employers in courts around the country. Dan has successfully tried...