July 5, 2020

Volume X, Number 187

July 03, 2020

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The “Western States Pact” and a Phased/Staged Approach to Reopening States in Response to COVID-19

California, Oregon, and Washington, recently joined by Colorado and Nevada, have agreed on a shared vision for reopening their economies and controlling  the spread of COVID-19 called the Western States Pact, recognizing the regional impact and interdependencies of the pandemic.  As part of the Western States Pact, the Governors indicated their commitment, in rolling out reopening orders, to four common goals: (i) protecting vulnerable populations at risk for severe disease if infected; (ii) ensuring an ability to care for those who may become sick, including adequate access to resources; (iii) mitigating the non-direct COVID-19 health impacts, particularly on disadvantaged communities; and (iv) protecting the general public by ensuring that business reopenings are coupled with the development of a system for testing, tracking and isolating.

Before reopening efforts began, only essential businesses and minimum basic operations were open, with teleworking requirements for non-essential office work and restrictions on travel for only essential reasons, including to and from businesses permitted to remain open. Of the five states joined in the Pact, as reflected in our state closures/reopening site,  stateclosures.com, and discussed below, CaliforniaWashingtonColorado and Nevada have issued orders and begun the reopening process.   All five states are implementing, or planning to implement, some form of a phased/staged approach to reopening the states.  As we move through the various phases of reopening, we see a focus on getting public facing businesses and venues back up, and eventually loosening up travel and gathering restrictions.

California

In California, the process of reopening will take place in four stages. Beginning May 8, California will be transitioning from Stage 1, to Stage 2. In Stage 1, only essential businesses and workplaces were open. Stage 2 allows for gradual reopening of lower-risk workplaces such as bookstores, clothing stores, florists and sporting goods stores, with modifications. Offices and dine-in restaurants will be part of a later Stage 2 opening. Counties can choose to continue more restrictive measures in place based on their local conditions, but can also move more quickly through Stage 2 if they attest that they meet the state’s readiness criteria.

Stage 3 will allow for higher-risk businesses to reopen, with modifications that allow for social distancing. This includes nail and hair salons, gyms, movie theaters, sports without live audiences, and in-person religious services. Stage 4 will be the end of the state’s stay-at-home order and will allow for concerts, conventions, and sports with a live crowd to resume.

Washington

Safe Start Washington,” Washington’s reopening approach, will occur in four phases. Governor Inslee recently extended the stay at home order through May 31, but amended some components of the original order to allow for Phase 1 of the reopen plan to begin. Some low-risk businesses may reopen once participants are able to fully comply with industry-specific requirements, which at a minimum will require compliance with social distancing and hygiene requirements indicated by the Washington State Department of Health. Phase 1 allows for landscaping and lawn care, vehicle and vessel sales, pet walking, curb-side pick-up retail, and car washes to reopen, with some restrictions.

Phase 2 will allow Washington residents to gather with no more than 5 people outside the household per week, will allow in-store purchases at retail stores with limitations, and will allow restaurants to open with limitations, among other things. Phase 3 will allow the resumption of non-essential travel, gatherings with no more than 50 people, and opening of bars, gyms, and movie theaters, with limitations. Phase 4 will essentially end the stay at home order, allowing high risk populations to resume public interactions, with physical distancing, and allowing nightclubs, concert venues, and large sporting events to reopen.

Each phase of the plan will be at least three weeks – data and metrics will determine when the state can move from one phase to another. Counties that meet specific criteria may request an exemption from certain prohibitions.

Nevada

Nevada’s Roadmap to Recovery is a four phase plan for reopening the state. Nevada has not yet entered Phase 1 of the plan. Governor Sisolak recently extended the previous stay at home order, allowing a slight modification for non-essential businesses to resume retail sales, on a curbside or home delivery basis only.

Phase 1 will allow the opening of outdoor spaces, small businesses, and select retail businesses, under strict social distancing measures and controls. Phase 1 is anticipated to last for two to three weeks. Phase 2 will be a broader opening of commerce/retail services, and public life under extremely strict social distancing measures and controls. Phase 2 will be in place for a minimum of two to three weeks, dependent upon progress toward goals and sustained ability to meet criteria.

Phase 3 will ease measures on some public and mass gatherings and non-essential travel with highly modified operations. There is no estimated duration for Phase 3. Rather, the state can transition into the final phase once “a robust surveillance sentinel system is in place, coupled with widespread point-of-care testing and a robust ability to implement tracing, isolation, and quarantines—and this is supported by the availability of therapeutics that can help mitigate the risk of spread or reduce serious outcomes in those with infections—or alternatively a vaccine has been developed and tested for safety and efficacy.”

Phase 4 will be a return to normalcy in daily lives, with most/all businesses operating with enhanced hygiene and vigilance. Phase 4 is potentially of perpetual duration, unless a second spike in the disease occurs.

Colorado

Colorado has transitioned from a “Stay at Home” state to a “Safer at Home” state. Although Governor Polis has not issued a phase/staged reopen plan similar to others in the Pact, this transition marks the first phase of Colorado’s approach to reopening the state. Under the “Safer at Home” phase, retail business can reopen with curbside pickup. People are also permitted to return to non-essential office work and businesses such as personal training and dog grooming can reopen with social distancing measures.

Oregon

Governor Kate Brown extended the state of emergency in Oregon for an additional 60 days, through July 6, 2020. However, similar to the other states in the Pact, Governor Brown has addressed a plan to reopen Oregon called “Reopening Oregon.” The key elements of the framework are to slow the growth of new cases, obtain adequate personal protective equipment (PPE), and establish a robust public health framework to support the reopening effort.

The Reopening Oregon plan aims to reopen the state in three phases. Rural counties with very few cases of COVID-19 who meet the prerequisites can enter Phase 1 starting May 15. After 21 days in Phase I, counties continuing to meet the prerequisites may be able to enter Phase II. The goal of Phase II is to further expand gathering sizes, allow some office work, and begin to allow visitation to congregate care. Phase III will allow concerts, conventions, and live audience sports to resume. However, it is unclear when Phase III will commence.

The Western States Pact demonstrates how the growing patchwork of States’ business closure, and partial or full re-opening, orders and requirements will continue to evolve in unique ways.  The different and changing requirements create challenges for business, particularly multi-state businesses, in understanding when, how, and under what conditions they may conduct operations.  In the absence of an overarching national strategy, it seems likely that more States may elect to cooperate on a regional basis to partially re-open and attempt to implement consistent policies.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 136

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About this Author

Nikku D. Khalifian Business Litigation Lawyer Womble Bond Dickinson Law Firm
Associate

Nikku focuses her litigation practice on general business litigation, commercial and consumer finance litigation, personal injury and labor and employment.

Nikku is part of the Loyola Law School Fellowship Program.  Nikku is an accomplished pianist, speaks conversationsal Farsi, and is a certified LexisNexis researcher.

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