April 20, 2020

Opening Up America Again – PART II

photo of attorney Cameron Townes Gore

Opening Up America Again – PART II
Link to PART I 

By Cameron Townes Gore

Last week, President Trump released guidelines titled “Opening Up America Again,” that call for a three-phase approach for States to follow in lifting stay-at-home orders put in place due to the Coronavirus pandemic.  The guidelines are not an order, state governors are not required to follow the guidelines, and the power to re-open remains with state governors. The plan is “based on up-to-date data and readiness” and is designed to “mitigate the risk of resurgence,” and to protect “the most vulnerable.” The guidelines may be implemented on a state-by-state or even county-by-county basis.

Before beginning the three phase process, the guidelines include “gating criteria” that a state or region should satisfy. The gating criteria are two pronged. First, the state or region must show a “downward trajectory” of reported symptoms, or symptomatic persons, and of reported cases for the state or region for a period of 14 days; and hospitals must be able to “treat all patients without crisis care” and have a “robust testing program in place for at-risk healthcare workers, including emerging antibody testing.” Second, the region must meet various “core state preparedness responsibilities” which include requirements related to testing, healthcare system capacity, and plans to protect the public and monitor conditions.

  • Testing: the state or region must have the “[a]bility to quickly set up safe and efficient screening and testing sites” for COVID-19-like and influenza-like symptomatic persons and the ability trace contacts of COVID positive results. Sentinel surveillance[1] testing sites must be screening for asymptomatic cases and tracing contacts for all COVID positive results.
  • Healthcare system: must have capacity to treat patients, to provide personal protective equipment to healthcare workers, and to access critical medical equipment to handle a dramatic surge if necessary.
  • Plans and monitoring: the state or region should have a plan to protect healthcare workers and workers and those who live in “high-risk” facilities such as senior care facilities. There should be a plan for protecting employees and users of mass transit and there should be a plan for advising citizens of the protocols for protection. Finally, the state or region must have the ability to monitor, respond to, and mitigate any resurgence or outbreak.

Once the gating criteria are met, phase one calls for incremental loosening of the shelter-in-place order. Vulnerable individuals[2] are advised to continue to shelter-in-place and all other individuals are advised to maximize social distancing, avoid groups of 10 persons or more, and minimize all non-essential travel. Employers are encouraged to continue to allow remote or telework if possible, make accommodations for members of a vulnerable population, and to allow people to return to work in phases. Common areas at work should be closed, social distancing should be practiced, and non-essential travel should be limited.

During phase one, schools and youth activities should remained closed and visits to hospitals and high risk facilities like senior living facilities should be prohibited. Elective surgeries may resume on an out-patient only basis. “Large venues” such as restaurants, movie theaters, sporting venues, and places of worship may operate under “strict social distancing protocols.” Bars should remained closed but gyms may reopen if strict social distancing protocols are followed.

In phase two, vulnerable individuals should continue to shelter in place. All other individuals should continue to maximize social distancing, avoid groups of people of 50 or more, and areas where appropriate social distancing may not be observed should be avoided. Non-essential travel may resume under phase two.

Employers should continue to encourage remote or telework if possible, continue to close common areas in the work place, and continue to enforce social distancing protocols. Schools and youth activities may resume under phase two but visits to hospitals and high risk facilities should still be prohibited. Larger venues may begin to operate under “moderate social distancing protocols.” Bars may resume operation under phase two.

Finally, under phase three, vulnerable individuals may resume social interaction but should continue to practice social distancing when in public. All other individuals may resume social interaction, but should minimize time spent in crowded environments. Employers may permit unrestricted access to worksites. Visits to hospitals and high risk facilities may resume under diligent social distancing and hygiene guidelines. Larger venues such as restaurants, bars, sporting venues, and gyms may remain open under limited social distancing protocols and standard sanitization procedures.

Through each phase, state and local governments are encouraged to continue to adhere to CDC guidelines, particularly with regard to practicing good hygiene, wearing face coverings, and staying home if you feel sick. States should continue to closely monitor symptoms and reported cases for a potential resurgence or outbreak. If an outbreak or resurgence occurs, the state should reassess its ability to meet the “gating criteria” and return to phase one or two of the guidelines.

The guidelines are broadly written and require governors to decide when and how to re-open their state. Decisions such as what a “robust testing program” looks like, how quickly and efficiently testing and contact tracing must be completed, and how restrictive social distancing protocols should be are those that must be made by state and local government.

If you have questions about what this means for your business or how the guidelines may impact your employees, please contact us at (850) 434-9200.


[1] Sentinel surveillance “is used when high-quality data are needed about a particular disease that cannot be obtained through a passive system.” A sentinel system utilizes “[s]elected reporting units, with a high probability of seeing cases of the disease in question, good laboratory facilities and experienced well-qualified staff” to identify and trace the disease. A Sentinel system, as opposed to a passive system “deliberately involves only a limited network of carefully selected reporting sites” rather than receiving data from a broad spectrum of healthcare workers and facilities. Source: https://www.who.int/immunization/monitoring_surveillance/burden/vpd/surveillance_type/sentinel/en/

[2] “Vulnerable individuals” are defined as “1. Elderly individuals; 2. Individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.”

Source for article: https://www.whitehouse.gov/openingamerica/#criteria

Cameron Townes Gore is an associate in the firm’s Pensacola office. Cameron’s practice primarily focuses on general litigation, construction litigation, and construction lien law. Contact Cameron at 850-208-7031 or cgore@clarkpartington.com.

About Clark Partington:

Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee.  The firm also maintains a presence in South Alabama with an Orange Beach office.  Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law.  Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom.  More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.

This publication should not be construed as legal advice.  Its applicability is dependent upon specific facts and circumstances and is provided for informational purposes only.  You should not act upon this information without seeking advice from a lawyer licensed in your own state.[/vc_column_text][/vc_column][/vc_row]