United States: The reopening playbook - An analysis of reopening plans for Illinois and Minnesota

In brief

As states develop and implement strategies to re-vitalize economies devastated by COVID-19, it is apparent that plans will vary widely from state to state; one size will not fit all. Here we examine plans adopted in Illinois and Minnesota.


Contents

Illinois' plan To Reopen: What businesses need To know

On May 5, 2020, Illinois Governor JB Pritzker announced the initial framework of his five-phase regional “Restore Illinois” plan (the Illinois plan) to gradually reopen Illinois’ economy.  The Governor’s state-wide stay at home order, as modified, remains in effect until May 29, 2020. 

Below are key provisions of the  Illinois plan. The full text of the Illinois plan, along with a map of the state’s four geographic health zones and a list of frequently asked questions can be found here.  The Governor has stated that the Illinois plan is subject to revision, based on changes that may occur as the outbreak evolves and the advice of experts. 

Chicago Mayor Lori Lightfoot has also issued a similar five-phase reopening framework for Chicago, which will “complement” the state-wide Illinois plan (available here).

Executive orders

On March 20, 2020, Governor Pritzker issued an executive order requiring all individuals living within the state of Illinois to stay at home and for any non-essential businesses to cease operations.  Shortly thereafter, Governor Pritzker extended the order's effective date to April 30, 2020.  In late April, Governor Pritzker announced the stay-at-home order would extend through the end of May and issued an amendment easing some of the prior restrictions and implementing new ones. 

The Governor's latest amendment requires all individuals to wear a face mask in public any time they cannot maintain six feet of distance from others.  In addition, the order adds greenhouse, gardening centers, and nurseries to the list of essential business permitted to operate in the state.  Relatedly, non-essential businesses are currently permitted to fulfil telephone and online orders through pick-up outside the store and delivery.

“Restore Illinois” plan

The Illinois plan consists of five phases: (1) Rapid Spread, (2) Flattening, (3) Recovery, (4) Revitalization, and (5) Illinois Restored.  The Illinois plan breaks the state down into four geographic health zones, which will independently move through five distinct phases, permitting the state’s businesses to gradually reopen as cases of COVID-19 and related hospitalizations decrease over time.  However, certain conditions could cause a region in the state to move backwards between phases, such as a sustained rise in rate of positive COVID-19 tests, sustained increase in hospital admissions, or significant outbreak in a given region.

As of May 19, 2020, all geographic regions of the state are in phase 2 (“Flattening”). 

Phase 1: Rapid spread

A region is in the “Rapid Spread” phase when the number of COVID-19 positive patients in hospitals, in ICU beds, and on ventilators is increasing.  During this phase, the Illinois plan continues strict stay at home and social distancing guidelines and limits business operations as follows: 

  • Only essential manufacturing and essential retail (with strict restrictions) may operate;
  • Employees of non-essential businesses are required to work from home (except for Minimum Basic Operations, as defined in the Stay at Home order);
  • Bars and restaurants may be open for delivery, pick-up, and drive-through only; and
  • Non-essential retail, entertainment, personal care services, and health clubs must remain closed (in this phase, the plan also limits gatherings, travel, health care, education and child care, and outdoor recreation)

A region may move from phase 1 to phase 2 only if the following requirements are met: slowing of new case growth; availability of surge capacity in adult medical and surgical beds, ICU beds, and ventilators; ability to perform 10,000 tests per day state-wide; and testing available in region for any symptomatic health care workers and first responders.

Phase 2: Flattening

In the “Flattening” phase, the rise in the rate of COVID-19 infections is beginning to slow and stabilize, hospital capacity remains stable, and hospitalizations and ICU bed usage continue to increase but are flattening.  As of May 19, 2020, all regions in Illinois are in the “Flattening” phase of the Illinois plan.

During this phase, essential retail stores may open with restrictions, and non-essential stores may open for delivery and curbside pickup, but the remaining phase 1 business restrictions (highlighted above) continue to apply.  Face coverings must be worn when social distancing is not possible.

To move to phase 3, the following conditions must be met: at or under a 20 percent positivity rate and increasing no more than 10 percentage points over a 14-day period; no overall increase (i.e. stability or decrease) in hospital admissions for COVID-19-like illness for 28 days; available surge capacity of at least 14 percent of ICU beds, medical and surgical beds, and ventilators; and additional testing and tracing requirements (e.g. testing available for certain populations).

Phase 3: Recovery 

During the “Recovery” phase, the rate of infection, and rates of COVID-19 related hospitalizations and ICU capacity, remain stable or are decreasing, permitting select industries to begin to return to the workplace (with social distancing and sanitation practices in place, and subject to Illinois Department of Health ("IDPH") approved safety guidance): 

  • Non-essential manufacturing that can safely operate with social distancing may reopen;
  • Employees of “non-essential” businesses are allowed to return to work (depending upon risk level);
  • Barbershops and salons may open;
  • Health and fitness clubs can provide outdoor classes and one-on-one personal training; and
  • Retail may open with capacity limits.

Bars and restaurants must still provide delivery, pick-up, and drive through services only, and face coverings must be worn in public. 

The same cases and capacity criteria for moving from phase 2 to phase 3 apply for a region to move from phase 3 to phase 4 (tracked from the time a region enters phase 3 onward), along with increased testing and tracing requirements.

Phase 4: Revitalization 

In the “revitalization” phase, there is a continued decline in the rate of infection in new COVID-19 cases, and hospitals are able to adapt to new cases in their communities.  During this phase:

  • All manufacturing may open with IDPH approved safety guidance
  • All employees may return to work with IDPH approved safety guidance
  • Retail, entertainment, bars, restaurants, barbershops, salons, spas and health and fitness clubs may open, with capacity limits and IDPH approved safety guidance.

Moving from phase 4 to the fifth and final phase requires a vaccine, effective and widely available treatment, or the elimination of new cases over a sustained period of time through herd immunity or other factors.

Phase 5: Illinois restored

This phase of the Illinois plan will only be reached when a vaccine is developed to prevent additional spread of COVID-19, a treatment option is readily available that ensures health care capacity is no longer a concern, or there are no new cases over a sustained period.  Once this occurs, all sectors of the economy may reopen.

Minnesota's plan to reopen: What businesses need to know

On May 13, 2020, Minnesota Governor Tim Walz issued executive Order 20-56, announcing Minnesota's plan to safely reopen the state's economy (the Minnesota plan). The Order will go into effect on May 18, 2020.  A summary of the Minnesota Plan's guidance and requirements can be found here. We analyze below the key provisions of the Minnesota Plan, and explain how they interact with the state’s prior shelter-in-place executive orders. 

Businesses that may reopen

The Minnesota Plan allows all Minnesota retail stores, malls, and other businesses that sell, rent, maintain, and repair goods to open on Monday, May 18, 2020.  Prior to reopening, these businesses must adopt and implement a “COVID-19 Preparedness Plan,” and implement social distancing guidelines for employees and customers.  Among other requirements, each of these establishments must limit occupancy to less than 50% of normal occupancy capacity at any time, allow six feet of physical distance at checkout stations, install a plastic barrier to shield cashiers, disinfect changing rooms after customer use, and provide hand sanitizer throughout the premises.  For a detailed discussion of a compliant COVID-19 Preparedness Plan, see below.
 
All industrial and office-based businesses that have previously been allowed to operate may also reopen co-located retail facilities, subject to the COVID-19 Preparedness Plan guidelines detailed below.  Household service businesses (such as cleaning, piano tuning, and auto detailing) and drive-in activities where patrons remain in their vehicles (such as drive-in movies) may also engage in commerce, pursuant to the same restrictions.  A practical guide outlining Minnesota’s Plan can be found here.

Businesses that may not reopen

Minnesota businesses that require “prolonged close physical contact” and “pose a higher risk for spreading COVID-19” may not reopen at this time.  This includes:

  • Restaurants and bars, except for curbside pickup or delivery.  In-person dining is prohibited.  Methods of drop-off, pickup, and delivery should allow for at least six feet between the worker and customer; 
  • Gyms and fitness studios;
  • Barber shops, hair and nail salons, tattoo parlors, spas, massage centers, and other businesses that require “prolonged close physical contact between people.” These establishments may continue to sell retail goods via curbside pickup or delivery;
  • “Places of public amusement,” including museums, zoos, concerts, race tracks, auctions, bowling alleys and other indoor event venues.

Though Minnesota has not indicated when these businesses may expect to reopen, Minnesota government is “develop[ing] a phased plan to achieve the limited and safe reopening of bars, restaurants, and other places of public accommodation beginning on June 1, 2020.”  (executive order 20-56).

COVID-19 preparedness plan requirements

Minnesota businesses allowed to reopen pursuant to the  Minnesota Plan's guidance must develop and implement a COVID-19 Preparedness Plan and post it publicly.  To comply with this requirement, all workplaces must: 

  • Ensure sick workers stay home by establishing health screening protocols, including temperature taking; sending workers with symptoms and exposed workers home; establishing communication protocols when workers have been potentially exposed; establishing sick worker reporting protocols; evaluating sick leave policies; providing accommodations for vulnerable population; and clearly communicating sick leave policies to all workers;
  • Require workers to stay at least six feet away from each other by maximizing telecommuting; staggering shifts and breaks; creating additional shifts; evaluating traffic patterns to reduce crowding; limiting gatherings of workers; and using partitions;
  • Monitor worker hygiene by ensuring workers regularly wash their hands; keeping handwashing and/or sanitizing facilities readily stocked; providing protective equipment, such as non-medical cloth masks, gloves, and other supplies; prohibiting on-site food consumption and sharing; and positing “cover your cough” signs;
  •  Keep premises clean, disinfected, and ventilated on a routine basis, paying particular attention to high-touch items such as door knobs, countertops, railings, handles, light switches, etc.  Businesses should also maximize fresh air into the workplace, and attempt to minimize air flow from air conditioning units blowing across people;
  • Providing adequate training for all employees regarding safety protocols and practices.

In addition, senior management responsible for implementing the Preparedness Plan must: 

  • Sign and certify the Preparedness Plan, affirming their commitment to implement and follow the Plan;
  • Provide the Preparedness Plan to all workers; and
  • Post the Preparedness Plan at all of the business’s workplaces in locations that will allow for the Plan to be readily reviewed by all workers.  (Where appropriate, businesses may post and disseminate the Preparedness Plan electronically.)

The preparedness plan also requires workers who are able to work from home to continue working from home.  For a complete list of reopening requirements, consult the preparedness plan checklist here.

Prior executive orders

Certain critical sector businesses were never required to close and may continue operations.  Categories of exempt businesses are based on federal guidance from the Cybersecurity and Infrastructure Security Agency (CISA), but also include Minnesota-specific additions.  This list broadly includes, but is not limited to: 

  • Healthcare and public health workers;
  • Law enforcement, public safety, and first responders;
  • Food and agriculture workers;
  • Energy, water, and wastewater workers;
  • Transportation, logistics, and public works and infrastructure support services;
  • Communications and information technology workers;
  • Community-based government operations and essential functions;
  • Critical manufacturing workers, chemical workers, and hazardous materials workers;
  • Financial services workers;
  • Commercial facilities and essential supply store workers; and
  • Residential/shelter facilities and services.

Please refer to executive order 20-48 for a full list of exempt critical sector workers.

Pending litigation

It is worth noting that challenges to the validity of Minnesota’s COVID-19 Executive Orders are currently pending in both federal and state court.  See Free Minnesota Small Business Coalition, et al., Petitioners, vs. Tim Walz, Governor of Minnesota, No. A20-0641 (Minn. Ct. App. 2020); Northland Baptist Church of St. Paul, Minnesota et al v. Walz et al., No. 0:20-cv-01100 (D. Minn. 2020).

In a similar suit, the Wisconsin Supreme Court ruled that Wisconsin’s Safer at Home order was unlawful and unenforceable.  For a detailed discussion of that decision, click here.  We continue to monitor these important developments and will provide updates as they become available. 
 


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