On Thursday, April 30, 2020, Ohio’s Director of the Department of Health, Dr. Amy Acton, signed a “Stay Safe” Order, which lifts certain restrictions from Ohio’s prior “Stay-at-Home” Orders. The Order sets out a plan to start reopening the Ohio economy with some limitations and continued restrictions. The Order went into effect at 11:59 p.m. on April 30, 2020, and remains in full force and effect until 11:59 p.m. on May 29, 2020, unless Ohio’s governor decides to amend or rescind the Order.

Of note, the Stay Safe Order no longer distinguishes between “essential” and “nonessential” businesses. Instead, the Order classifies businesses by sector and sets forth industry-specific protocols for how businesses within those industries should operate upon reopening. Below are the key takeaways for Ohio employers.

Businesses and Operations to Reopen

The Order allows all businesses and operations¹ in Ohio, except those specifically identified in the Order (see section 3 below), to reopen within Ohio, so long as the employer can meet all the mandatory COVID-19 protocols and workplace safety standards under the Order. Also, those businesses and operations that remained open consistent with prior “Stay-at-Home” Orders are encouraged to remain open and to comply with the requirements of the new Order.

Manufacturing, Distribution, and Construction

Effective 12:01 a.m. on May 4, 2020, all manufacturing, distribution, and construction businesses may reopen, subject to the “Sector Specific COVID-19 Information and Checklist for Businesses/Employers” outlined in the Order.

To reopen, manufacturing, distribution, and construction businesses must take the following actions:

• Ensure a minimum six-foot distance between people; if not possible, install barriers.
• Employees must perform a “daily symptom assessment” that should include taking temperature with a thermometer and monitoring for fever, coughing, or trouble breathing.
• Require employees to stay home if symptomatic.
• Require employees to wear masks or facial coverings—with certain exceptions explained below.
• Consider having distributors and guests wear face coverings at all times.
• Require regular handwashing.
• Stagger or limit arrivals of employees and guests.
• Have employees work from home whenever possible.
• Disinfect desks and workstations daily.
• Change shift patterns (e.g., fewer shifts).
• Stagger lunch and break times.
• Perform a deep disinfection of high-contact surfaces daily.
• Space factory floor to allow for distancing.
• Regulate the maximum number of people in cafeterias and common spaces.
• Establish maximum capacity.
• Immediately isolate and seek medical care for any individual who develops symptoms while at work.
• Contact the local health district about suspected cases or exposures.
• Shutdown shop or floor for deep sanitation if possible.

General Office Environments

Effective 12:01 a.m. on May 4, 2020, all general office environments may reopen, subject to their “Sector Spector Specific COVID-19 Information and Checklist for Businesses/Employers” outlined in the Order (referenced immediately below). However, businesses are strongly encouraged to permit as many employees as possible to continue working from home.

General office environments that reopen must take the following actions:

• Ensure a minimum six-foot distance between employees; if not possible, install barriers.
• Personnel should work from home when possible.
• Employees must perform daily symptom assessment that should include taking temperature with a thermometer and monitoring for fever, coughing, or trouble breathing.
• Require employees to stay home if symptomatic.
• Require employees to wear masks or facial coverings—with certain exceptions explained below.
• Consider having customers wear face coverings at all times.
• Require regular handwashing by employees.
• Reduce sharing of work materials.
• Limit travel as much as possible.
• Stagger arrival of all employees and guests.
• Post signage on health safety guidelines in common areas.
• Frequently disinfect desks, workstations, and high-contact surfaces.
• Daily disinfect common areas.
• Cancel or postpone in-person events when social distancing guidelines cannot be met.
• Close any buffets in cafeterias.
• Utilize disposable tableware and other materials.
• Establish maximum capacity.
• Immediately isolate and seek medical care for any individual who develops symptoms while at work.
• Contact the local health district about suspected cases or exposures.
• Shut down shop or floor for deep sanitation if possible.

Medical Care

Ohio’s March 17, 2020 Order for the management of non-essential surgeries and procedures in Ohio is no longer in effect as of 11:59 p.m. on April 30, 2020. Hospitals and other providers are asked to reassess all surgeries delayed under the March 17, 2020 Order. Surgeries and procedures are to be prioritized and performed if there is a:

• Threat to the patient’s life if the surgery or procedure is delayed.
• Threat of permanent dysfunction of an extremity or organ system if delayed.
• Risk of metastases or progression of staging if delayed.
• Risk of rapidly worsening symptoms to severe if delayed.
• Presence of severe symptoms causing an inability to perform activities of daily living.

Under the Order, medical providers, including dentists, may resume non-essential surgeries, procedures, etc.—i.e., health care that does not require inpatient or overnight stay. These surgeries, procedures, and other health care services that utilize minimal personal protective equipment (PPE) and have a minimal impact on inpatient hospital bed capacity, may resume only if the provider meets the following conditions:

• The provider follows infection control and other environmental practices in accordance with the Ohio Department of Health (ODH) and Centers for Disease Control and Prevention (CDC) guidelines.
• The provider maintains adequate inventories of PPE, supplies, equipment, and medicine in their facility for each patient, considering all phases of care the patient may require.
• The provider creates a plan for conservation and monitoring that may include decontamination and reuse protocols to preserve PPE, supplies, equipment, and medicine to be prepared for an influx of patients, including those who do not have COVID-19.
• The provider evaluates access to a reliable supply chain to support continued operations for non-COVID-19 case, and to respond to an unexpected surge in COVID-19 cases in a timely manner.
• The provider frequently counts PPE inventory. For hospitals, this information will continue to be reported to the State’s COVID-19 resource management system on a daily basis.
• The provider defines processes for timely COVID-19 testing of patients and staff in accordance with ODH guidelines.
• The provider continues to use telehealth modalities whenever possible.
• The provider develops an actionable plan for communication, outreach, and equitable delivery of services that: (i) recognize the underlying social determinants of health and the disproportionate impact of COVID-19 on minority populations; (ii) engages patients in discussions regarding the risk of contracting COVID-19; and (iii) engages patients in shared decision-making regarding the need for and timing of health care services.

Providers should continue to use telehealth modalities whenever possible, and create or use existing internal strategies to prioritize cases based on the medical staff’s governance and resolution structure. Providers should also follow the Responsible Restate Ohio Guide for Health Care distributed by ODH.

Consumer, Retail, and Services

Effective 12:01 a.m. on May 12, 2020, all retail establishments and facilities may reopen, subject to their “Sector Spector Specific COVID-19 Information and Checklist for Businesses/Employers” outlined in the Order (referenced below). Currently closed retail establishments and facilities that agree to restrict their operations to curbside pickup, delivery, or appointment only (limited to 10 customers at any one time) may reopen effective 11:59 p.m. on May 1, 2020.

Retail establishments and facilities that reopen must take the following actions:

• Ensure a minimum six-foot distance between people; if not possible, install barriers.
• Employees must perform daily symptom assessment that should include taking temperature with a thermometer, and monitoring for fever, coughing, or trouble breathing.
• Require employees to stay home if symptomatic.
• Require employees to wear masks or facial coverings—with certain exceptions explained below.
• Consider having customers wear face coverings at all times.
• Require regular handwashing by employees.
• Place hand sanitizers in high-contact locations.
• Clean high-touch items after each use (e.g., carts, baskets).
• Ensure minimum six-foot distance between customers.
• Specify hours for at-risk populations (e.g., elderly).
• Ask customers and guests not to enter if symptomatic.
• Stagger entry of employees and guests.
• Post social distancing signage.
• Disinfect high-contact surfaces hourly.
• Clean merchandise before stocking if possible.
• Establish maximum capacity.
• Discontinue self-service food stations and product samples.
• Food courts remain closed.
• Immediately isolate and seek medical care for any individual who develops symptoms while at work.
• Contact the local health district about suspected cases or exposures.
• Shut down shop or floor for deep sanitation if possible.

Masks or Facial Coverings

Businesses must allow all customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings, except for specifically documented legal, life, health or safety considerations and limited documented security considerations. They must also require employees to wear facial coverings, except:

• where facial coverings are prohibited by law or regulation;
• where facial coverings are contrary to documented industry standards;
• where facial coverings are not advisable for health reasons;
• where facial coverings violate a business’s documented safety policies;
• where facial coverings are not required because an employee works alone in an assigned work area; and
• where there is a functional (practical) reason for an employee not to wear a facial covering in the workplace.

Upon request, businesses must provide written justification explaining why an employee is not required to wear a facial covering in the workplace. At a minimum, facial coverings should be cloth/fabric and cover an individual’s nose, mouth, and chin.

Certain Ohio Employers Remain Restricted or Closed Under Prior Orders

The Stay Safe Order left in place several employer closures and restrictions from prior Orders. The following businesses and operations remain closed or restricted to limited operations:

Schools

All K-12 schools in Ohio remain closed under the Second Amended Director of Health Order signed April 29, 2020, or as it may be subsequently amended.

Restaurants and Bars

Restaurants and bars remain closed to all but carry-out and delivery activities under the Director of Health Order signed March 15, 2020, or as it may be subsequently amended.

Personal Appearance / Beauty Businesses and Operations

Businesses and operations related to personal appearance or beauty services remain closed under the Director of Health Order signed March 19, 2020, or as it may be subsequently amended. This includes:

• Hair salons
• Day spas
• Nail salons
• Barber shops
• Tattoo parlors
• Body piercing locations
• Tanning facilities
• Massage therapy locations, and
• Other similar businesses.

Adult Day Support or Vocational Habilitation Services in a Congregate Setting

Adult day support or vocational habilitation services in a congregate setting remain prohibited under the Amended Director of Health Order signed March 21, 2020, or as it may be subsequently amended.

Older Adult Day Care Services and Senior Centers

Adult day care services remain prohibited, and senior centers remain closed under the Director of Health Order signed March 24, 2020, or as it may be subsequently amended.

Child Care Services

Child care services remain prohibited, except for facilities with a Temporary Pandemic Child Care License, under the Director of Health Order signed March 24, 2020, or as it may be subsequently amended.

Entertainment / Recreation / Gymnasiums

All indoor family entertainment businesses and ventures remain closed under the Director of Health Order signed March 21, 2020, or as it may be subsequently amended. This includes businesses such as:

• Laser tag facilities
• Roller skating rinks
• Ice skating rinks
• Arcades
• Indoor miniature golf facilities, and
• Adult and child skill or chance game facilities.

In addition, certain businesses and places of public amusement remain closed under the Amended Director of Health Order signed March 17, 2020, or as it may be subsequently amended. This includes:

• Auditoriums
• Stadiums
• Arenas
• Parades
• Fairs
• Festivals
• Bowling Alleys
• Health clubs
• Fitness centers
• Workout facilities
• Gyms
• Yoga studios
• Indoor trampoline parks
• Indoor water parks
• Movie and other theatres (excluding drive-in theatres)
• Performance theatres
• All public recreation centers
• Indoor sports facilities
• All indoor and outdoor places of public amusement, including, but not limited to:
  
  • Locations with amusement rides
  • Carnivals
  • Amusement parks
  • Water parks
  • Aquariums
  • Zoos
  • Museums
  • Arcades
  • Fairs
  • Children’s play centers
  • Playgrounds
  • Funplexes
  • Theme parks
  • Bowling alleys
  • Concert and music halls
  • Country clubs, and
  • Social clubs.
• All swimming pools, except a swimming pool for a single household
• Recreational sports tournaments are prohibited, including:
  
  • Organized recreational sports leagues
  • Residential camps, and
  • Day camps.
• Campgrounds, including recreational camps and recreational vehicle (RV) parks, unless used as a residence by individuals with no other viable place of residence, and excluding cabins, mobile homes, or other self-contained units, meant for single families where preexisting, full season agreements already exist.

Ohio Businesses that Remain Closed May Continue “Minimum Basic Operations,” Which Include:

• The minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions; and
• The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

All Ohio Businesses and Their Employees Must Comply with Social Distancing Requirements

Under the Stay Safe Order’s social distancing requirements, employees must:

• Maintain at least six-foot social distancing from other individuals, including when standing in line;
• Wash hands with soap and water for at least 20 seconds as frequently as possible, or use hand sanitizer;
• Cover coughs or sneezes (into the sleeve or elbow, not hands);
• Regularly clean high-touch surfaces; and
• Abstain from shaking hands.

Also, businesses are required to take proactive measures to ensure compliance with the Stay Safe Order’s social distancing requirements, including where possible:

• Designating with signage, tape, or by other means, six-foot spacing for employees and customers;
• Having hand sanitizer and sanitizing products readily available for both employees and customers;
• Implementing separate operating hours for elderly and vulnerable customers; and
• Posting online whether a facility is open and how to best reach the facility and continue services by phone or remotely.

Under the Stay Safe Order, All Ohio Employers Must do the Following:

• Strongly encourage as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing, subject to the employer’s discretion.
• Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (3 full days) AND symptoms have improved for at least 72 hours AND at least 7 days have passed since symptoms first began.
• Employers should not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness as healthcare providers and medical facilities are extremely busy and not able to provide such documentation in a timely way.
• Ensure that sick leave policies are up-to-date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
• Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
• Reinforce key messages—stay home when sick, use cough and sneeze etiquette, and practice hand hygiene—to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
• Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
• Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend a portion of operations).
• Comply with all applicable guidance from the CDC and the ODH regarding social distancing.

“Stay-at-Home” Still Required

The Order requires Ohio residents to stay at home, except to participate in activities, businesses, or operations as permitted by the Order. Also, at all times, residents must continue to observe social distancing of at least six feet from any person who is not family or a member of their household, as outlined in the Order.

Prohibited Activities

The Order prohibits all public and private gatherings of any number of people occurring outside a single household and connected property, or living unit and connected property, except for specific exemptions outlined in the Order. This prohibition includes any social gathering of 10 or more people in accordance with President Trump’s coronavirus guidelines issued March 16, 2020.

The Order’s prohibited activities do not apply to religious facilities, entities, or group religious gatherings, or weddings and funerals of 10 or fewer people.

Permitted and Prohibited Travel

The Order continues to allow travel into or out of Ohio. Permitted travel includes (1) any travel related to the provision of or access to activities, businesses, and operations that are permitted to open under the Order or Minimum Basic Operations; (2) travel to care for vulnerable persons (e.g., elderly, minors, dependents, persons with disabilities); (3) travel to or from educational institutions for purpose of receiving materials for distance learning, for receiving meals, and any other related services; (4) travel to return to a place of residence form outside the jurisdiction; (4) travel to return to a place of residence from outside the jurisdiction; (5) travel required by law enforcement or court order, including to transport children under a custody agreement; or (6) travel required for non-residents to return to their place of residence outside the state. Individuals engaged in travel must comply with all social distancing requirements as outlined in the Order.

Persons who have tested positive for COVID-19, are presumptively diagnosed with COVID-19, or are exhibiting symptoms identified in the CDC’s and the ODH’s guidance shall not enter the state, unless they are doing so under medical orders for the purpose of medical care, are being transported by emergency medical services (EMS), are driving or being driven directly to a medical provider for purposes of initial care, or are a permanent resident of the state.

Enforcement of the Stay Safe Order

The Order authorizes state and local law enforcement to enforce the Order “to the extent set forth in Ohio law.” Public officials enforcing the Order are to direct questions to local health departments, which are authorized to answer questions in writing consistent with the Order. However, the Order does not require local health departments to provide advisory opinions to nongovernmental entities.

Persons who violate the Order may be charged with a second-degree misdemeanor. See O.R.C. §§ 3701.352 and 3701.99(C). As the Order states, the penalty for such an offense can include a fine of not more than $750 and/or not more than 90 days in jail.

Dispute Resolution

Under the Order, if a local health department issues a determination that is contrary to the determination of a different local health department, the conflict may be submitted to the ODH by either local health department or an entity or person subject to the determination. A Dispute Resolution Commission will review any such conflict and make a determination as to the application of the Order. The decision of the Dispute Resolution Commission is final.

Additional information about the new Stay Safe Order can be found at Ohio’s COVID-19 website.