As New Hampshire continues its phased reopening following COVID-19 business closures, new orders and sector-specific guidance place significant obligations on businesses with respect to employer and employee conduct, in addition to general health and safety measures for customers.

On August 27, the state again updated its Universal Guidelines. As noted in the August 12 overhaul, this guidance replaces the guidelines issued as Exhibit A to Order 52. These guidelines are the minimum standards that businesses must adhere to in order to maintain or begin operations, and are applicable to all New Hampshire employers, organizations, and individual business operators in conjunction with applicable industry-specific guidelines. Compliance with the universal guidelines is mandated under the state’s initial declaration of emergency, currently in effect through September 18 (Order 2020-17).

Order 52 itself is in effect until October 1, 2020, per Order 66.

Part of the August 27 update was adding Addendum A, reflecting additional safety protocols for the following industries:

• Community Arts & Music Education
• Drive-In Movie Theatres
• Driver’s Education
• Funeral Homes
• Equestrian Facilities
• Golf Courses
• Libraries
• Museums & Art Galleries
• Outdoor Attractions (not amusement parks)
• State Parks

More information on these protocols is available in our alert regarding reopenings throughout New England. A summary of the key provisions of the guidelines applicable to all businesses is below, including key updates as of August 27 regarding travel.

The universal guidance makes clear that businesses may take additional or more restrictive precautions, which all employees must follow, in addition to guidelines issued by state and local officials. The August 27 update clarifies that any if there is any conflict between guidance issued by a government entity, such as the CDC or OSHA, and the universal guidance, the universal guidance is controlling.  However, we note that any OSHA or CDC requirement that is more stringent than state or local requirements must nonetheless be followed to comply with federal laws and regulations, and recommend that if there is a conflict in guidance, the more restrictive guidance be followed.

Workplace Flexibility

Employers must allow employees or volunteers to work from home as much as is practical. Similarly, all work processes must be reviewed for possible modifications to reduce the risk to employees, volunteers, and customers. Examples include:

• Modifying schedules to reduce the frequency and duration of physical interactions, including staggering shifts, breaks, and meals
• Conducting meetings by phone or videoconference, and limiting in-person meetings
• Arranging workspace layout to allow for six feet of social distancing
• Staggering any customer/client appointments to prevent customer interaction

COVID-19 Exposure and Screening

Employers must prohibit all employees diagnosed with COVID-19, those exhibiting COVID-19 symptoms, or who have had close contact exposure to someone with a confirmed COVID-19 diagnosis, and those reporting exposure risk factors, including travel-related risk factors, from entering the workplace. All such employees must be instructed to go home and contact their health provider to be tested, and to self-isolate.

Businesses must also develop a process for screening all employees and volunteers reporting for work or activities for COVID-19-related symptoms or risk factors. Screening must include the specific symptom-related screening questions listed in the universal guidelines. Note that the universal guidance lists a number of otherwise generic ailments as COVID-19 symptoms in the screening questionnaire, including a runny nose and nasal congestion, as precluding entry to the workplace. Further, daily temperature checks are required of all workers prior to the start of any shift.

While New Hampshire, unlike the rest of New England, largely does not have any generally applicable mandatory travel restrictions, the universal guidelines require employers to prohibit any employee from entering the workplace prior to the completion of a 14-day self-quarantine upon entry or return to New Hampshire from any state outside of New England. That August 27 update exempts essential travel, which includes travel for personal safety, medical care, care of others, parental shared custody, for food, beverage or medication, or for work. For those who answer affirmatively, testing is not required unless the employee develops symptoms. The travel-related risk factors on the screening questionnaire ask about international travel, travel by cruise ship, or domestic travel to any state outside of New England. The state’s Department of Public Health (DPH) travel guidance instructs employers to not permit any non-essential international or out-of-state domestic business travel.

Enhanced Cleaning and Sanitation

Employers must also develop enhanced cleaning and disinfection policies and procedures, and educate and train all employees about proper cleaning and disinfection of frequently-touched surfaces. These procedures should follow CDC guidance for cleaning and disinfecting.

Alcohol-based hand sanitizer must be readily available to all employees and customers or clients, and employers must promote frequent hand hygiene. If workers must share tools or equipment, businesses must establish procedures for cleaning and disinfecting between uses. Restrooms must be monitored to ensure social distancing, including occupancy limits if necessary, and routine cleaning and disinfecting.

Employers must identify a safety officer who is a dedicated staff member tasked with monitoring and improving compliance with social distancing, face covering use, hand hygiene, and other protective policies. This person should also serve as a point of contact for responding to employee and/or customer COVID-19 concerns.

Ventilation should be evaluated to increase room and overall building ventilation, including increasing the number of air exchanges and increasing outdoor air ventilation, limiting internal air circulation, and improving central air filtration. Ventilation system filters must be routinely replaced and other necessary maintenance should be performed as needed. CDC guidance is available for businesses and office buildings, as is OSHA guidance for workplaces.

Mask Use

Other than its requirement for face coverings for gatherings of 100 or more persons (Order 63), New Hampshire has no general mandate requiring masks or face coverings, although individual towns and cities have initiated their own ordinances. In addition to any sector-specific guidelines requiring masks for employees or customers, the universal guidelines require employees providing direct service to consumers or individuals to wear masks while providing such service. The universal guidelines specify that when a face covering or mask is required, wearing only a face shield is prohibited as a substitute for a face covering or mask, but may be worn as additional protection. Similarly, a glass or plastic barrier alone is not a substitute for wearing a face covering or mask.

Business Planning

Employers must implement plans to continue essential functions in the case of unusually high absenteeism. Businesses must also review their policies to ensure that they are consistent with public health recommendations and existing state and federal workplace laws, and should amend or update internal policies to include COVID-19, or otherwise create a COVID-19-specific policy. This includes creating or maintaining non-punitive policies that allow employees to stay home if sick or to care for a sick family member. Covered businesses and organizations and employees should be reminded of the provision of the Families First Coronavirus Response Act that allows for paid sick leave or expanded family and medical leave for specified reasons, such as for self-quarantining or seeking a medical diagnosis for COVID-19 symptoms.

Enforcement

Order 65, effective August 13, outlines penalties for violations of any COVID-19-related emergency orders, rules, and regulations. Civil penalties may be imposed for the following:

• Failure to comply with any emergency order, rule, or regulation issued under the state of emergency and enforced by DPH (fine of $2,000 per day)
• Failure to cooperate in an investigation of a potential violation of an emergency order (fine of $1,000 per day)
• Failure to cease operations upon notification of DPH to do so (fine of $1,000 per day)
• Failure to comply with DPH instructions after notification of a positive COVID-19 test result (fine of $1,000 per day)

Notably, any business, organization, entity, property owner, facility owner, organizer, or individual that recklessly violates any emergency order, rule, or regulation is subject to civil penalties of up to $1,000 for each violation or day that a violation continues.